The Irish abortion tourism case
The impact of EU fundamental freedoms on diverging human rights
standards; a need for (European) regulation?
Paper for the 2010 Dubrovnik seminar on Market Freedoms and Fundamental Rights in the
Enlarging European Union. Submitted by Nelleke Koffeman LL.M•
I – INTRODUCTION
‘Polish women encouraged to come to UK for 'free abortions' on NHS’ was a recent headline of
1
the British newspaper The Daily Telegraph. The newspaper article described how a Polish proabortion group had launched a publicity campaign advocating traveling to the United Kingdom
(UK) to get free abortions on the British National Health Service (NHS) as a way of avoiding
Poland's strict abortion laws. While the campaign provoked indignant reactions of British
Members of Parliament, who felt that the NHS should not carry the costs of abortions, the article
also reported that Polish Public Prosecutor had started an investigation to determine whether the
offence of aiding a pregnant woman who wants to terminate her pregnancy had occurred.
The above illustrates that even within the relatively homogeneous European Union (EU) there is
still considerable diversity in the interpretation of fundamental rights. This diversity seems to be
inevitable, since law often reflects the moral choices made in society whereas in many policy
2
areas no uniform European conception of morals can be discerned. For several reasons of
principle explicit room for such diversity can be positively valued. Most importantly, such room
does justice to policy choices made at a national (democratic) level and it shows respect for
national values. However, within the free movement setting of the EU, diversity in the
interpretation and protection of fundamental rights may also have adverse consequences.
National differences are not only exposed even more clearly by the increased mobility within the
•
N.R. Koffeman is PhD student and lecturer at Leiden University, The Netherlands. She conducts her PhD research
under the supervision of Prof J.H. Gerards and Prof Dr R.A. Lawson.
1
M. Day, ‘Polish women encouraged to come to UK for 'free abortions' on NHS’, The Daily Telegraph 15 March 2010,
online available at http://www.telegraph.co.uk/news/worldnews/europe/poland/7441990/Polish-women-encouraged-tocome-to-UK-for-free-abortions-on-NHS.html, (last accessed 09.04.2010).
2
See inter alia ECtHR 7 December 1976, Handyside v. United Kingdom, appl. no. 5493/72, para. 48: ECtHR judgment of
22 October 1981, Dudgeon v. United Kingdom, appl. no. 7525/76, para. 52 and ECtHR [GC] judgment of 10 April 2007,
Evans v. United Kingdom, appl. no. 6339/05, para. 77.
1
EU; the mobility also puts these national differences at risk, thereby raising new legal and
practical difficulties.
An example thereof concerns EU citizens or residents who deliberately search for a different level
3
of protection of fundamental rights in other EU Member States. Abortion tourism is a good
example in this respect; pregnant women who wish to procure an abortion but who live in a
country where abortion is illegal may travel to a more liberal state, where abortions are available
more easily. A similar phenomenon is conceivable in other fields such as euthanasia or IVF
treatment or concerning the import of controversial literature such as Hitler’s Mein Kampf, which
is on the market in some Member States, but prohibited in others. Another situation occurs when
the free movement of EU citizens or residents is hindered by differences in the level of protection
of fundamental rights in other EU Member States. Here, one may think of an EU citizen or
resident who wishes to move to another Member State for work purposes, but whose third
country national spouse is not able join him or her, as the country of destination does not
recognise their same sex marriage.
4
In both these type of situations the interests of at least three actors are at stake; those of the
individual, of the Member States and of the Union. For the individual, the present situation is that
the level of protection of the fundamental rights of an individual is to a great extent dependent on
his or her place of residence. The interests and sovereignty of the second group of actors, the EU
Member States, can be affected as well, for instance because the effectuation of their standards
of human rights protection may be subverted by citizens travelling to other states with deviating
standards. The situation becomes even more complicated when the interests of the third actor,
the European Union, are taken into consideration. One may question whether the Union’s twofold
objective to maximize free movement without restrictions, while respecting the national identities
3
This now established expression has been used by various authorities, for instance by the European Parliament in a
Resolution on abortion, Official Journal C-096, (17.04.1990) p. 0019 and by the Council of Europe Parliamentary
Committee on Social Health and Family Affairs in its opinion on a Resolution on Access to safe and legal abortion in
Europe, doc. 11576 of 15 April 2008.
4
Compare the judgment of the German Verwaltungsgericht Karlsruhe [Administrative Court] of 9 September 2004,
Aktenzeichen AZ 2 K 1420/03, online available at: www.lsvd.de/bund/lpartg/vgkarlsruhe.pdf. The German court ruled that
Dutch marriage between same-sex partners is not a lawful German marriage. Referring to the judgment of the European
Court of Justice in the Reed case (ECJ 17.04.1986, C-59/86) the Court ruled that only a general, Europe-wide societal
change could justify the extension of the term ‘spouse’. In the Court’s opinion the sole fact that the Netherlands and
Belgium introduced same-sex marriage could not be regarded as such a societal change. The German court upheld the
refusal to issue an Aufenthaltserlaubnis-EG [EU residence permit] for spouses of EU citizens for a period of five years to
the Chinese spouse of a Dutch man who was employed in Germany and therefore had a residence permit for an indefinite
period.
2
of the Member States, is feasible in a European legal order with such diverse levels of
fundamental rights protection.
This paper focuses on the first type of situation, when EU citizens or residents deliberately use
free movement rights to profit from a different level of fundamental rights protection in other
Member States. The Irish abortion tourism case will serve as a concrete example to sketch the
impact of EU fundamental freedoms on diverging human rights interpretations from the
perspectives of three actors; the individual, the state and the Union. The paper will focus on the
Irish case, as this is well-documented and has yet resulted in several interesting judicial
procedures at domestic and European level. Part II will discuss these relevant developments –
legislative, jurisprudential and factual – in the Irish abortion tourism case at domestic and at
European level. There from the relevant interests of the three distinguished actors will be
deducted (part III). Part IV will analyse to what extent the ECJ has taken such interests into
account in other case-law where fundamental rights and fundamental freedoms were at issue.
This will lead to the formulation of questions for further discussion and research in the final part
(part V). An example of a question that will be discussed is at what level these issues should be
regulated. Are there any arguments to be distracted from the sketching of the perspectives of the
relevant actors, that advocate that these morally sensitive issues should be regulated at
European level, and to what extent? What could such regulation entail and how to decide this
question?
II – IRISH ABORTION TOURISM
‘There is a huge amount of hypocrisy in the Irish situation. One of the main reasons that
abortion remains illegal is because they can export their problem, because women can
5
travel.’
2.1 Abortion tourism statistics
Each year the UK Department of Health releases statistics on abortions carried out in England
and Wales. These statistics also show how many women and girls gave addresses in Ireland to
5
Ann Furedi, Chief Executive of the British Pregnancy Advisory Service, August 20, 2008., as quoted in Human Rights
Watch, A State of Isolation, Access to Abortion for Women in Ireland, Human Rights Watch 2010, online available at
http://www.hrw.org/en/reports/2010/01/28/state-isolation-0 (last accessed) 10.04.2010), p. 16.
3
6
the abortion clinics. On the basis of these statistics the Irish Family Planning Association (IFPA)
holds that between January 1980 and December 2008, at least 137,618 women travelled from
7
Ireland for abortion services in England and Wales. During the eighties approximately 3,500 Irish
8
women travelled to the UK per year. By the end of the nineties this number was estimated to
9
have risen to 6,000 to 7,000 per year. In the years to follow, this number dropped again, to a
total of 4,600 women providing Irish addresses who had an abortion in the United Kingdom in
10
2008 , representing 67 percent of all documented abortions performed on non-resident women
during this period.
11
The IFPA underlines that these numbers are an underestimation ‘as not all
women resident in the Republic of Ireland will provide their Irish address for reasons of
confidentiality. Furthermore, some Irish women will give addresses in the UK at which they are
not resident in order to obtain abortion care paid for by the NHS [National Health Service].’
12
It
must furthermore be noted that an increasing number of women are accessing safe and legal
13
abortion services in other EU countries such as the Netherlands , allegedly due to the rise of low
budget airline connections. Statistics from the Dutch Expert Centre on Sexuality (Rutgers Nisso
Group) show that in 2007 the share of Irish women in the group of non Dutch resident women
obtaining an abortion in Dutch clinics was ten per cent (450 out of 4,469 abortions) in 2007
compared to four per cent (177 out of 4,436 abortions) in 2008.
6
14
15
These statistics are online available at the website of the UK Department of Health,
http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsStatistics/DH_099285 (last accessed
22.03.2010).
7
Website of the IFPA, http://www.ifpa.ie/eng/Hot-Topics/Abortion/Statistics (last accessed 22.03.2010).
8
Idem. See also D. Cole, ‘“Going to England”: Irish Abortion Law and the European Community’, Hastings International &
Comparative Law Review 1993, p. 119, footnote 26 and N. Klashtorny, ‘Ireland’s abortion law: An abuse of international
law’, Temple International and Comparative Law Journal 1996, p. 419. See furthermore ECtHR 29 October 1992, Open
Door Counselling and Dublin Well Woman t. Ierland, appl. no. 14234/88, para. 26.
9
IFPA op cit., n. 6.See also www.womenonwaves.nl; Irish Council for Civil Liberties, Submission to the Government
Working Group on Abortion, March 1998, online available at www.iccl.ie; A.M. Clifford, ‘Abortion in International waters off
the coast of Ireland: avoiding a collision between Irish moral sovereignty and the European Community’, Pace
International Law Review 2002, p. 409; M.C. McBrien, ‘Ireland: balancing traditional domestic abortion law with modern
reality and international influence’, Suffolk Transnational Law Review 2002, p. 195 and K. J. Johnson, ‘ "New thinking
about an old issue”: The abortion controversy continues in Russia and Ireland - could Roe v. Wade have been the better
solution?', Indiana International and Comparative Law Review 2004, p. 199 and 200.
10
Annex12c to UK Department of Health, Statistical Bulletin 2009/1, Crown (21 May 2009), online available on
http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsStatistics/DH_099285 (last accessed
22.03.2010).
11
Idem, p. 3.
12
IFPA op. cit, n. 6. See also Human Rights Watch 2010, op. cit., n. 5, p. 14,
13
Human Rights Watch also interviewed Irish women who had had abortions in Italy and France. Human Rights Watch, A
State of Isolation, Access to Abortion for Women in Ireland, Human Rights Watch 2010, op. cit., n. 5, p. 10.
14
The report furthermore shows that whereas on average foreign abortion ‘clients’ are younger than the women residing in the
Netherlands, the Irish women are the exception to the rule. L. van Lee, C. Wijsen, Landelijk abortusregistratie 2007, Rutgers
Nisso Groep 2008, p. 47-48, online available at
4
In its recent report on access to abortion for Irish women, Human Rights Watch (HRW) has
pointed out that ‘there are no statistics available about the numbers of women who cannot travel
abroad for abortion because they cannot afford to, do not have the necessary travel permissions,
or who lack information about services available outside Ireland’.
16
There are furthermore no
statistics available on illegal abortions performed in Ireland. HRW warns that the lack of reliable
statistics ‘severely hampers the ability of the Irish government to provide women in Ireland with
the medical services to which they are entitled, including necessary post-abortion care’.
17
2.2 Irish abortion law
Abortion is not allowed in Ireland, safe for the exceptional situation that an abortion may save the
life of the mother. Under sections 58 and 59 of the Offences Against the Person Act 1861 –
provisions which are still in force in Ireland
18
– both the attempt of a pregnant woman to procure a
miscarriage and the supply of any poison or instrument to any woman with the intent to procure a
miscarriage are criminalised. The woman may in principle even face life imprisonment for an
19
abortion attempt. While England and Wales
20
and other Western countries liberalised their
21
abortion laws in the sixties and seventies , Ireland deliberately chose to restrict abortion
http://www.rng.nl/productenendiensten/onderzoekspublicaties/downloadbare-publicaties-in-pdf. On its website the IFPA
refers to statistics from the Irish Crisis Pregnancy Agency, which holds that 331 women from the Republic of Ireland traveled
to the Netherlands for safe and legal abortion services in 2008 and 451 women in 2007. Op. cit., n. 9.
15
H. Kruijer, L. van Lee, C. Wijsen, Landelijk abortusregistratie 2008, Rutgers Nisso Groep 2010, p. 33, online available at
http://www.rng.nl/productenendiensten/onderzoekspublicaties/downloadbare-publicaties-in-pdf.
16
Human Rights Watch 2010, op. cit., n. 5, p. 15.
17
Idem, p. 3 and 36.
18
The Irish Constitution of 1937 incorporated the common law prohibition on abortion and left the Offences Against the
Persons Act intact. Both s.58 and s. 59 were furthermore expressly upheld in s. 10 of the Health (Family Planning) Act
1979, Act no. 20 of 1979. See also C.M. Colvin, ‘Society for the Protection of unborn children (Ireland) Ltd v Grogan: Irish
abortion law and the free movement of services in the European Community’, 15 Fordham International Law Journal
(1992), p. 491-492.
19
Before 1861 the UK Statute 43 Geo.3, ch. 58 (1803) imposed the death penalty on one who administered poison with
the intent to induce the miscarriage of a pregnant woman. In the 1861 Act this was changed to life imprisonment.
20
In the United Kingdom after R v. Bourne [1939] 1 KB 687, [1938] 3 All ER 615, the Abortion Act 1967 was adopted.
21
In the United States of America. Roe v. Wade 410 US 113 (1973), was the landmark case, which was yet preceded by
Griswold v. Connecticut, 381 U.S. 479 (1965) and Eisenstadt v. Baird, 405 U.S. 438 (1972) on contraceptives. See inter
alia Colvin 1992, op cit., n. p. 492-493; J.A. Weinstein, ‘“An Irish solution to an Irish problem”: Ireland’s struggle with
abortion law’, 10 Arizona Journal of International & Comparative Law (1993), p. 171; K.S. Koegler, ‘Ireland’s Abortion
Information Act of 1995, 29 Vanderbilt Journal of Transnational Law (1996), p. 1120-1121; Klashtorny 1996, op. cit., n. 8,
p. 422; L. Hamilton, ‘Matters of life and death’, 65 Fordham Law Review (1996), p. 548; A-M.E.W. Sterling, ‘The European
Union and Abortion Tourism: Liberalizing Ireland’s Abortion Law, 20 Boston College International & Comparative Law
5
possibilities by incorporating the right to life of the unborn in the Constitution.
referendum
23
22
The 1983
in which this Constitution amendment was adopted, has been referred to by Chief
Justice Finlay, former President of the Irish Supreme Court, as ‘a decision by the people to insert
into the Constitution a specific guarantee and protection for a fundamental right perceived to be
threatened by developments in the societies of countries outside Ireland’.
24
Since that date, the
first paragraph of Article 40.3.3º of the Constitution reads:
‘The State acknowledges the right to life of the unborn and, with due regard to the equal
right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by
its laws to defend and vindicate that right.‘
25
This provision underlines the primary importance the Irish Constitution attaches to the right to life
of the unborn. The only exception to the constitutional right to life of the unborn is to save the life
of the mother. As a result of the highly controversial X-case (1992), concerning a 14-year old rape
victim, a risk of suicide may also constitute such a real and substantial risk to the life of the
mother, as to permit termination of pregnancy under Irish law.
26
A non-life-threatening risk to the
Review (1997), p. 388 and A.M. Buckley, ‘The primacy of democracy over natural law in Irish abortion law: an examination of
the C case’, 9 Duke Journal of Comparative & International law (1998), p. 281.
22
In the relevant referendum of September 1983 the Eighth Amendment of the Constitution was adopted. 53.67% of the
electorate voted with 841,233 votes in favour and 416,136 against.
23
By virtue of Article 46 of the Irish Constitution any provision of the Constitution may be amended, whether by way of variation,
addition or repeal. Every proposal for such an amendment – referred to as ‘An Act to amend the Constitution’ – must be
initiated in Dáil Éireann (the House of Representatives) as a bill. After its passing by both Houses of the Oireachtas
(National Parliament) the bill must be submitted by Referendum to the decision of the people. To date the Houses of the
Oireachtas have proposed to amend the Constitution thirty times. See Website of the All-Party Oirechtas Committee on
the Constitution, http://constitution.ie/amending-the-constitution (last visited 25.02.2010).
24
T.A. Finlay, ‘The Constitution of Ireland in a Changing Society’, in: D. Curtin, D. O’Keeffe (eds.), Constitutional
Adjudication in European Community and National Law – Essays for the Hon. Mr. Justice T.F. O’Higgins, Dublin:
Butterworth 1992, p. 140. See also R.A. Lawson, ‘The Irish Abortion Cases: European Limits to National Sovereignty?’, 1
European Journal of Health Law (1994), p. 167.
25
Eight Amendment of the Constitution Act, No. 8 (7 October 1983). This self-executing provision of the Constitution does
not require legislation to give it effect. The term ‘unborn’ in this provision is not defined; the legislature has left its
interpretation to the courts. In 1987, Chief Justice Hamilton held that the right to life of the unborn is afforded statutory
protection from the date of its conception (The Attorney General (Society for the Protection of the Unborn Children (Ireland
Ltd) v. Open Door Counselling Ltd [1988] IR 593 at 598, [1987] ILRM 477 at 480). More recent case law from 2009 shows
that in the course of an in vitro fertilisation (IVF) treatment an ‘unborn’ described in Article 40.3.3º is established after an
embryo is implanted, as implantation changes the relationship between the mother and the embryo. Roche v. Roche &
ors, [2009] IESC 82, Judgment delivered the 15th day of December, 2009 by Denham J.
26
Attorney General v. X [1992] 1 IR 1 at 53, [1992] ILRM 401 at 425. This case will be discussed in further detail in
section 2.3.3. For a long time the guidelines of the Irish Medical Council did not accept a risk of suicide as a real and
substantial risk to the life of the mother which could justify an abortion. The Medical Council, A Guide to Ethical Conduct
and Behaviour, Dublin 2004, p. 44, online available at www.medicalcouncil.ie. Compare McBrien 2002, op. cit., n. 9, p.
6
27
health of the mother or the mere fact that the pregnancy was caused by rape , cannot be a
ground for abortion, neither can Irish women rely on a right to privacy or self-determination in
abortion cases.
28
2.3 Relevant legal and factual developments in the Irish abortion tourism case
Irish abortion tourism is a direct result of the state’s restrictive abortion law. Both the abortion
laws and the abortion tourism have been challenged before domestic and European courts. On
the one hand, anti-abortion campaigners have tried to estop Irish women from travelling to
England and other foreign destinations for abortions and to a certain extent they were successful
in doing so. On the other hand, and particularly more recently, Irish women have claimed a right
to abortion within Ireland, also in situations where their life is not in danger, claiming that travelling
to another state is too burdensome in their specific circumstances. In the following paragraphs
the various relevant legislative and jurisprudential developments will be discussed in
chronological order, to give a factual background overview. In the parts to follow these
developments will be subjected to further analysis.
2.3.1 National challenges to the Irish abortion tourism
In the eighties the Irish anti-abortion campaigners of the Society for the Protection of the Unborn
Children (SPUC) sought to stop women for travelling abroad for an abortion and initiated a series
of proceedings against the Irish agencies Open Door Counselling and Dublin Well Woman Centre
who provided non-directive counselling about legal abortion services abroad.
29
In The Attorney
General (Society for the Protection of the Unborn Children Ireland Ltd) v. Open Door Counselling
Ltd (1988)
30
the Irish Supreme Court granted an injunction restraining the two counselling
212; Johnson 2004, op. cit., n. 9, p. 200. The most recent guidelines, of 2009 however explicitly hold: ‘Abortion is illegal in
Ireland except where there is a real and substantial risk to the life (as distinct from the health) of the mother. Under current
legal precedent, this exception includes where there is a clear and substantial risk to the life of the mother arising from a
threat of suicide.’ Irish Medical Council, Guide to professional conduct and ethics for registered medical practitioners, 7th
edition 2009, p. 21, online available at http://www.medicalcouncil.ie/Professional-Standards/Professional-ConductEthics/The-Guide-to-Professional-Conduct-and-Ethics-for-Registered-Medical-Practitioners-7th-Edition-2009-.pdf. (last
accessed 10.04.2010).
27
Compare McBrien 2002, op. cit., n. 9, p. 222.
28
As O’Connell puts it: ‘the right to self-determination does not include the right to end life’. R. O’Connell, ‘Natural Law:
Alive and Kicking? : a Look at the Constitutional Morality of Sexual Privacy in Ireland’, in:
L. May, and J. Brown (eds), Philosophy of law : classic and contemporary readings, Chichester [etc.]: Wiley-Blackwell
2010, p. 597.
29
The Attorney General (Society for the Protection of the Unborn Children (Ireland Ltd) v. Open Door Counselling Ltd [1988]
IR 593, at 625.
30
Idem.
7
agencies from assisting pregnant women ‘to travel abroad to obtain abortions by referral to a
clinic, by the making for them of travel arrangements, or by informing them of the identity and
location and method of communication with a specified clinic or clinics or otherwise.’
31
The Court
held that the agencies had no constitutional right to exercise their freedom of expression, as they
were ‘assisting in the ultimate destruction of the life of the unborn’, whose right to life was
expressly guaranteed by the Constitution.
32
President of the Court, Chief Justice Finlay merely
held that ‘no right could constitutionally arise to obtain information the purpose of [..] which was to
defeat the constitutional right to life of the unborn child’.
33
Consequently the counselling agencies,
Open Door Counselling and Dublin Well Woman Centre, lodged a complaint with the European
Court of Human Rights, but before this Court could give a ruling on the issue before it, a new set
of proceedings was initiated.
Strengthened by the successful litigation at national level against the counselling agencies, SPUC
brought a suit against three students’ unions who distributed free handbooks containing
information about abortion services available in England.
34
Referring to Articles 59 and 60 of the
EEC Treaty (now 56 and 57 TFEU) the students’ unions contended that Irish citizens had a right
to receive and impart information about services lawfully available in other Member States. The
High Court made a reference to the Court of Justice of the European Communities (ECJ) for a
preliminary ruling ex Art 177 EEC Treaty (now 267 TFEU) on three questions: (a) whether
abortion was a ‘service’ within the meaning of the EEC Treaty; (b) if so, whether the distribution of
information regarding those services constituted a restriction within the meaning of Article 59 of
the Treaty; and (c) if so, whether such a restriction could be justified under Community law. The
High Court did not grant an interlocutory injunction against the students’ unions while the ECJ’s
opinion was awaited.
35
SPUC appealed to the Supreme Court against this inaction of the High
Court. The Supreme Court unanimously granted the injunction, asserting that no Community law
regarding services could outweigh the right to life of the unborn as guaranteed by Ireland’s
31
Injunctions in Ireland apply to all those who have notice of them. Sterling therefore concludes that this ruling effectively
forced abortion counselling underground. Sterling 1997, op. cit, n. 21,p. 390, referring to A.M. Hilbert, 'Notes, The Irish
Abortion Debate: Substantive Rights and Affecting Commerce Jurisprudential Models', 26 VanderBilt Journal of
Transnational Law (1994), p. 1135.
32
The Attorney General (Society for the Protection of the Unborn Children (Ireland Ltd) v. Open Door Counselling Ltd [1988]
IR 593, at 624-625.
33
Idem, at 625. For critique of this ruling see also Hilbert 1994, op. cit., n. 31 p. 1134 and A. Thompson, ‘International
protection of women’s rights: an analysis of Open Door Counselling Ltd. and Dublin Well woman Centre v. Ireland’, 12
Boston University International Law Journal (1994), p. 382.
34
The Society for the Protection of Unborn Children (Ireland) Ltd v. Grogan [1989] IR 753, [1990] ILRM 350.
35
From Campus Oil v Minister for Industry [1983] IR 82 it follows that under Irish law there is no appeal against a decision
to refer a case t the ECJ.
8
Constitution.
36
According to Colvin this reflected a view contrary to the jurisprudence of the Court
37
of Justice regarding the supremacy of Community law.
2.3.2 The ECJ judgment in Grogan and its consequences
In its preliminary ruling, the ECJ rejected SPUC’s claim that abortion was ‘grossly immoral’ and
could not come within the definition of a service.
38
It held that termination of pregnancy, as
lawfully practised in several Member States, is a medical activity which is normally provided for
remuneration and may be carried out as part of a professional activity. Therefore the Court
concluded that medical termination of pregnancy, ‘performed in accordance with the law of the
State in which it is carried out’, constitutes a service within the meaning of Article 60 of the Treaty
(now Article 57 TFEU). However, the Court held that the links between the activities of the
students’ unions and the providers of abortion services in the United Kingdom or elsewhere, were
‘too tenuous’, for the prohibition on the distribution of information to be regarded as a restriction
within the meaning of the EEC Treaty.
could not claim protection of EC law.
39
Therefore the students’ unions lacked legal standing and
40
The Irish government was clearly worried about the effect of the ECJ’s ruling in Grogan
41
and
successfully lobbied for the adoption of a Protocol to the Treaty on European Union (also referred
to as the Maastricht Treaty (1992)). After all, the Court’s ruling implied that Irish law could
potentially conflict with Community law.
42
The students’ unions had been unsuccessful in Grogan
due to their indirect links with the abortion clinics in the UK. If, however, such a direct link could
be established in a different case, Community law could override Article 40.3.3º of the
Constitution.
43
To avoid that possibility, Protocol 17 to the Maastricht Treaty, provided:
36
The Society for the Protection of Unborn Children (Ireland) Ltd v. Grogan [1989] IR 753 at 765, [1990] ILRM 350.
37
Colvin 1992, op. cit., n. 18, p. 502.
38
Case 159/90, Society for the Protection of Unborn Children Ireland Ltd. (SPUC) v. Grogan, 1991-8 E.C.R. I-4685, [1991]
3 CMLR 849 (1991).
39
Idem, para. 24.
40
Idem, para. 25-27. Accordingly, in August 1992 the High Court granted a permanent injunction. Subsequently the
Supreme Court allowed the appeal against the High Court decision in Grogan (No 4). The Society for the Protection of
Unborn Children (Ireland) Ltd v. Grogan (No 4) [1994] 1 IR 46, [1993] 1 CMLR 197. The Society for the Protection of
Unborn Children (Ireland) Ltd v. Grogan (No 5) [1998] 4 IR 343.
41
B. Mercurio, ‘Abortion in Ireland: An analysis of the Legal Transformation Resulting from Membership in the European
Union’, 11 Tulane Journal of International & Comparative Law (2003), p. 163. See also Hamilton 1996, op. cit., n. 21, p.
553.
42
Mercurio 2003, op. cit., n. 41, p. 174.
43
See also Sterling 1997, op. cit., n. 22, p. 392 and B. Moriarty and A-M Mooney Cotter (eds.), Human rights law, Oxford:
Oxford University Press 2004, p. 18, who argue that if there had been an economic link, there would have been a clear
conflict between the Irish Constitution and the Treaty.
9
‘Nothing in the Treaty on the European Union or in the Treaties establishing the
European Communities or in the Treaties or Acts modifying or supplementing those
Treaties shall affect the application in Ireland of Article 40.3.3º of the Constitution of
Ireland.’
44
While Phelan suggests that this Protocol protected Article 40.3.3 from the jurisprudence of the
45
ECJ , Lawson considers that the words ‘the application in Ireland’, indicate that the free
movement of persons to other Member States could not be affected by the Protocol.
46
The
Protocol would later be partly revoked by the Irish government by ways of a solemn declaration,
under influence of the landmark and highly controversial
47
48
Attorney General v. X case.
2.3.3 The controversy around the X-case
In 1992, a 14-year-old girl – referred to as X – who was pregnant as a result of multiple rape
wished to travel to the UK with her parents to have an abortion. The girl claimed that she was
suicidal at the thought of carrying her pregnancy to term. Prior to their leave, the parents of the
girl contacted the Irish police to inquire if DNA tests could be carried out on the foetus, in order to
provide proof of paternity. The police contacted the Director of Public Prosecutions (DDP) who
declared on 5 February 1992 that such evidence would be inadmissible.
49
The following day the
family travelled to England to procure an abortion. The DDP in turn contacted the Attorney
General who subsequently sought an injunction order seeking the immediate return of the girl and
her parents to Ireland. The family returned and put evidence before the High Court that X would
commit suicide if she were forced to carry her pregnancy to full term. The High Court held that an
abortion could only be contemplated if it were established that an inevitable or immediate risk to
the life of the mother existed. It balanced the right to life of the girl against that of her unborn child
and concluded that the risk that X would take her own life if an order would be made was ‘much
44
Protocol Annexed to the Treaty On European Union and to Treaties Establishing the European Communities
[Regarding Ireland], Feb. 7, 1992, 31 I.L.M. 362. By virtue of Article 239 EEC Treaty (now 51 TEU), this Protocol has the
same effect as a Treaty Article, being subject to judicial review by the Court of Justice. Later however the Irish
Government made a Solemn Declaration partly revoking the Protocol. The legal status of this declaration was uncertain
(see below). See also D. Curtin, case note to ECJ C-159/90, 29 CML Rev (1992), p. 602.
45
D.R. Phelan, ‘Right to life of the Unborn v Promotion of Trade in Services: The European Court of Justice and the
Normative Shaping of the European Union’, 55 Modern Law Review (1992), p. 670.
46
Lawson 1994, op. cit., n. 24, p. 175.
47
Hogan and Whyte describe it as ‘what must surely qualify as the most controversial case ever to come before an Irish
court’, G. Hogan and G. Whyte, J.M. Kelly, The Irish Constitution, Dublin, etc: LexisNexis Butterworths 2003, p. 1503. See
also Buckley 1998, op. cit., n. 21, p. 285; Mercurio 2003, op. cit., n. 40, p. 160; Clifford 2002, op. cit., n. 8, p. 406, referring to
J. Kingston, A. Whelan and I. Bacik, Abortion and the Law: An Irish Perspective, Round Hall Ltd & Maxwell 1997, p. 6.
48
Attorney General v. X [1992] 1 IR 1, [1992] ILRM 401, [1992].
49
See P. Ward, 'Ireland: Abortion: X + Y = ?!', 33 University of Louisville Journal of Family Law (1994), p. 402.
10
less’ and ‘of a different order of magnitude’ than the certainty that the life of the unborn would be
terminated if the order was not made.
50
Furthermore, the constitutional right to travel abroad
could not be invoked where the purpose of the travelling was to have an abortion.
52
51
Justice
Costello maintained that the European Community allowed national governments discretion on
moral issues.
53
The High Court accordingly granted an injunction preventing the girl from leaving
Ireland for a period of nine months.
This judgment provoked unprecedented public reaction, also at the international level.
54
On the
strong advice of and with the financial support of the government, the family appealed the case to
the Supreme Court.
55
In an ex tempore ruling of 26 February 1992, a four to one majority of the
th
Supreme Court held that the injunction should be lifted. Ten days later, on the 5 of March, the
full judgments of the Court were handed down.
56
The majority of the Supreme Court held that the
Constitution envisaged abortion being lawful in limited circumstances. Chief Justice Finlay noted
that no interpretation of the Constitution was intended to be final for all time. He recalled that by
virtue of the amendment the State has a duty to have ‘due regard’ for the life of the mother and
decided that the two rights at stake had to be interpreted harmoniously.
57
In Finlay’s opinion the
proper test to be applied in this case was that:
‘[…] if it is established as a matter of probability that there is a real and substantial risk to
the life, as distinct from the health, of the mother, which can only be avoided by the
50
Attorney General v. X [1992] 1 IR 1, at 12; [1992] ILRM 401, at 410.
51
This unenumerated right was recognised for the first time in State (K.M.) v. Minister for Foreign Affairs, [1979] I.R. 73,
80-81 (Ir. H. Ct. 1979).
52
Attorney General v. X [1992] 1 IR 1, at 6-7. See also Koegler 1996, op. cit., n. 21, p. 1126.
53
See also Weinstein 1992, op. cit., n. 21, p. 191.
54
See inter alia Weinstein 1992, op. cit., n. 21, p. 191; Klashtorny 1996, op. cit., n. 7, p. 428 and Hamilton 1996, op. cit.,
n. 21, p. 554. Buckley held that ‘the former moral absolutism of Irish citizens and the judiciary began to fade under the
particularly tragic facts of this case’. Buckley 1998, op. cit., n. 21, p. 286. In the Netherlands Parliamentary questions were
posed about the X-case. Parliamentary Documents of the Dutch Lower House of the States-General (Kamerstukken II)
1991-1992, no. 398 (February 1992).
55
Sterling 1997, op. cit., n. 21, p. 393; J. Schweppe, ‘Mothers, fathers, children and the unborn. Abortion and the twenty-fifth
amendment to the Constitution Bill’, 9 Irish Student Law Review (2001), p. 141 and S. Mullally, ‘Debating Reproductive
Rights in Ireland’, in: B. Lockwood (ed.), Women’s Rights, A Human Rights Quarterly Reader, Johns Hopkins University
Press: Baltimore 2006, p. 626.
56
Attorney General v. X [1992] 1 IR 1, [1992] ILRM 401.
57
Hogan and Whyte define the doctrine of harmonious interpretation as ‘the principle that constitutional provisions should not
be construed in isolation from all the other parts of the Constitution among which they are embedded but should be so
construed as to harmonise with the other parts’. They think that this doctrine is ‘no more than a presumption that the people
who enacted the Constitution had a single scale of values, and wished those values to permeate their charter evenly and
without internal discordance’. Hogan and Whyte 2003, op. cit., n. 47, p. 8.
11
termination of her pregnancy, such termination is permissible, having regard to the true
interpretation of Article 40,s.3, sub-s. 3 of the Constitution.’
58
The majority concluded that in casu this test was satisfied by the defendant who had established,
as a matter of probability, that there was a real and substantial risk to the life of the mother by
self-destruction which could only be avoided by termination of her pregnancy.
59
The exact
standard of proof and the requirements needed to establish a sufficient risk were however not
60
clarified in the majority judgment.
After the X-case, the Irish government feared that Irish voters disagreeing with the X-case, also
disagreed with Protocol 17 and would therefore reject ratification of the Maastricht Treaty in a
referendum which was scheduled for June 12 of that year.
61
As Sterling explains the X-case
made it clear that while an injunctive power still existed with regard to abortions abroad, there
were some cases where abortion would be legal and neither side of the debate wanted the
Protocol to freeze that status quo.
62
The Government therefore sought an amendment to Protocol
17. But the other EC Member States refused to reopen the debate on the Protocol. The Irish
government had no choice but to settle for a Solemn Declaration
63
to the effect that Protocol 17
would not ‘limit freedom either to travel between Member States or […] to obtain or make
available in Ireland information relating to services lawfully available in Member States’.
64
Some
58
Attorney General v. X [1992] 1 IR 1 at 53, [1992] ILRM 401 at 425.
59
This same conclusion was later reached in the similar case of A. and B. v. Eastern Health Board & C. [1998] 1 IR 464,
often referred to as the C-case. Buckley observes that in the latter case the Court went further in its holding by permitting
a state agency to fund and facilitate the young girl’s abortion. She holds that as a result of the case it is unclear who has
the right to an abortion in Ireland and who is able to receive government funding for such an abortion. Mercurio agrees
with Buckley that Irish abortion law still fails to address the question whether a woman who demonstrates a real and
substantial risk to her life to qualify for an abortion is eligible to receive state-funded medical treatment. They both furthermore
point out that the C-case suggests that ‘very little evidence is needed to prove a real and substantial risk of suicide’.
Buckley 1998, op. cit., n. 21, p. 276, 302 and 304-305 and Mercurio 2003, op. cit., n. 41, p. 169.
60
Weinstein 1992, op. cit., n. 21, p. 193; Koegler 1996, op. cit., n. 21, p. 1133-1134 and Klashtorny 1996, op. cit., n. 8,
p. 429.
61
The Maastricht Treaty was signed by the Irish government on 7 February 1992. See Lawson 1994, op. cit., n. 24,
p. 176; Klashtorny 1996, op. cit., n. 8, p. 429-430; Sterling 1997, op. cit., n. 21, p. 394 and Buckley 1998, op. cit., n. 21, p.
288.
62
Sterling 1997, op. cit., n. 21, p. 394-395.
63
Declaration of the High Contracting Parties to the Treaty on European Union, adopted by the EC foreign ministers on
1 May 1992 in Guimaráes (Portugal). The relevant part of the Declaration reads: ‘That it was and is their intention that the
Protocol shall not limit freedom to travel between Member States or, in accordance with conditions which may be laid
down, in conformity with Community law, by Irish legislation, to obtain or make available in Ireland information relating to
services lawfully available to Member States.’
64
Declaration of the High Contracting Parties to the Treaty on European Union, adopted by the EC foreign ministers on
1 May 1992 in Guimaráes (Portugal). The relevant part of the Declaration reads: ‘That it was and is their intention that the
12
uncertainty as to the legal status of this declaration existed.
65
Sterling held that it did not appear
to be legally binding on the ECJ, nor to serve as anything more than an interpretive guide for the
66
courts. Buckley called it ‘nothing more than a statement of political intent.’
67
Lawson observed
that to the extent that the Protocol has legal effect, it only relates to the application in Ireland of
Article 40.3.3.
68
In addition to the Solemn Declaration, the Irish government promised that a
separate referendum would be held regarding the right to travel abroad for an abortion and the
69
right to receive information about foreign abortion clinics. Apparently this promise had the
desired effect; in June 1992 the ratification of the Maastricht Treaty was approved by the Irish
people. The proposed new abortion referendum, was preceded by the ECtHR judgment in Open
70
Door Dublin Well Woman v. Ireland , which very likely influenced the results of the referendum.
2.3.4 ECtHR judgment in Open Door and its consequences
Abortion is and always has been a delicate issue within the Council of Europe. Views on the
circumstances under which an abortion may be permissible, differ widely between the High
Contracting parties to the ECHR. Because of the lack of consensus on the issue, the ECtHR – as
earlier the Commission did – in a case of May 1992 decided to leave states a rather wide margin
of appreciation in abortion issues, as it found that in such a delicate area the Contracting States
must have a certain discretion.
71
However already in the early case of Brüggeman and Scheuten
(1976) the Commission recognised that Article 8 ECHR is applicable to abortion issues:
Protocol shall not limit freedom to travel between Member States or, in accordance with conditions which may be laid
down, in conformity with Community law, by Irish legislation, to obtain or make available in Ireland information relating to
services lawfully available to Member States.’
65
See A. Eggert and B. Rolston, ‘Ireland’, in: B. Rolston and A. Eggert (eds), Abortion in the new Europe, A comparative
handbook, Westport (etc.): Greenwood Press 1994, p. 168; Buckley 1998, op. cit., n. 21, p. 289; D.A. MacLean, ‘Can the
EC kill the Irish unborn?; An investigation of the European Community’s ability to impinge on the moral sovereignty of Member
States’, 28 Hofstra Law Review (1999), p. 560; Hogan and Whyte 2003, op. cit., n. 47, p. 1506 and Mercurio 2003, op. cit.,
n. 41, p. 164-165.
66
Sterling 1997, op. cit., n. 21, p. 396, referring to Eggert and Rolston 1994, op. cit., n. 64, p. 168.
67
Buckley 1998, op. cit., n. 21, p. 289.
68
Lawson 1994, op. cit., n. 23, p. 181. See Curtin 1992, op. cit., n. 44, p. 602-603.
69
See inter alia Klashtorny 1996, op. cit., n. 8, p. 430; P. Manners, ‘Can governmental policy trump the freedom of
speech? Access to information about abortion services in Ireland and the United States’, 20 Suffolk Transnational Law
Review (1996), p. 295; Sterling 1997, op. cit., n. 21, p. 396 and Buckley 1998, op. cit., n. 21, p. 289.
70
ECtHR judgment of 29 October 1992, Open Door and Dublin Well Woman v. Ireland, appl. nos. 14234/88 and
14235/88.
71
EcieHR decision of 19 May 1992, Hercz v. Norway, appl. no. 17004/90.
13
‘[…] legislation regulating the interruption of pregnancy touches upon the sphere of
private life, since whenever a woman is pregnant her private life becomes closely
connected with the developing foetus.’
72
Against the background of that case-law, the Court had to rule in Open Door. While the European
73
Commission on Human Rights had avoided a decision on the nub of the matter before it , the
74
ECtHR in its judgment of October 1992 addressed the case on its merits. It must be noted that
the Court was not required to rule on whether abortion itself was protected under the Convention,
but only whether the injunction restraining the counselling agencies from providing information
about the procurement of lawful abortions abroad violated their Article 10 rights.
75
The Court
firstly noted that there was no doubt that the injunction constituted an interference with the
76
applicants’ freedom to impart and receive information.
restriction was prescribed by law
77
The Court furthermore held that the
and ‘pursued the legitimate aim of the protection of morals of
which the protection in Ireland of the right to life of the unborn is one aspect’.
78
It acknowledged
that since it is not possible to find in the legal and social orders of the Contracting States a
uniform European conception of morals, ‘national authorities enjoy a wide margin of appreciation
in matters of morals, particularly in an area such as the present which touches on matters of
79
belief concerning the nature of human life.’ Ward notes in this respect that the ECtHR had the
benefit of the Supreme Court decision in the X-case, ‘which signalled to the ECHR a change in
moral attitudes that may have weakened the State’s margin of discretion argument.’
80
The Court
ruled however that the restriction was disproportionate to the aims pursued. It was struck by ‘the
absolute nature of the Supreme Court injunction which imposed a “perpetual” restraint on the
provision of information to pregnant women concerning abortion facilities abroad, regardless of
age or state of health or their reasons for seeking counselling on the termination of pregnancy’.
72
EcieHR decision of 19 May 1976, Brüggeman and Scheuten v. Germany, appl. no. 6959/75.
73
In its report of 7 March 1991 the European Commission on Human Rights (ECieHR) had held that the injunction
81
granted by the Supreme Court against Open Door Counselling, Dublin Well Woman and others was not prescribed by law
and therefore violated their right to freedom of expression (Article 10 ECHR). EcieHR report of 7 March 1991,Open Door
and Dublin Well Woman v. Ireland, appl. nos. 14234/88 and 14235/88. By decision of 15 May 1990 the ECieHR had
already declared the complaint admissible. After the delivery of this report, both the Commission and the Irish government
decided to bring the case before the ECtHR.
74
See also Cole 1993, op. cit., n. 8, p. 135.
75
Idem, p. 124.
76
ECtHR judgment of 29 October 1992, Open Door and Dublin Well Woman v. Ireland, appl. nos. 14234/88 and
14235/88, para. 50.
77
Idem, para. 60.
78
Idem, para. 63.
79
Idem, para. 68.
80
Ward 1994, op. cit., n. 49, p. 396.
81
ECtHR judgment of 29 October 1992, Open Door and Dublin Well Woman v. Ireland, appl. nos. 14234/88 and
14
Other factors the Court took into consideration in assessing the proportionality of the restriction
were: its assessment that the link between the provision of information and the destruction of
82
unborn life was not as definite as contended ; that information could be obtained from other
83
sources in Ireland ; the ineffectiveness of the restriction in protecting the right to life of the
unborn since it did not prevent large numbers of Irish women from continuing to obtain abortions
84
in Great Britain ; the fact that the injunction created a risk to the health of those women seeking
abortions at a later stage in their pregnancy due to the lack of proper counselling and the adverse
effects of the injunction on women who were not sufficiently resourceful or did not have the
necessary level of education to have access to alternative sources of information.
85
The Court
accordingly found a violation of Article 10 ECHR, which protects the right to receive information.
86
2.3.5. A new abortion referendum is held
In the referendum of November 1992 three constitutional amendments were put before the
electorate, two of which were adopted. The first proposal (the Twelfth Amendment) related to
what has been described as the ‘substantive’ issue of the circumstances in which an abortion
would be permissible within Ireland. By means of this proposal, the government tried to limit the
effects of the X-case.
87
Abortion would be permitted where such was necessary to safe the life,
as distinct from the health of the mother, where such risk arose from an illness or disorder of the
mother, other than a risk of suicide.
debate.
89
88
This proposal was defeated by both sides of the abortion
Ten years later in the hitherto last referendum on abortion law of March 2002, the
Government again proposed an amendment of the Constitution to the electorate by taking away
14235/88, para. 73.
82
Idem, para. 75.
83
Idem, para. 76.
84
Idem, para. 76.
85
Idem, para. 77.
86
Having regard to its finding that there had been a breach of Article 10 the Court – like the Commission earlier –
considered it unnecessary to examine the case under Articles 8 (right to respect for private life) and 14 (prohibition of
discrimination) ECHR. ECtHR judgment of 29 October 1992, Open Door and Dublin Well Woman v. Ireland, appl. nos.
14234/88 and 14235/88, para 83. After this ECtHR judgment Open Door Counselling and Dublin Well Woman applied to
the Supreme Court to have the injunction restraining their activities lifted, but the Court rejected their appeal. Attorney
General ex rel Society for the Protection of Unborn Children (Ireland) Ltd. v. Open Door Counselling & Dublin Well Woman
Centre Ltd. [1994] 1 I.L.R.M. 256. See also Ward 1994, op. cit., n. 49, p. 396-397 and Sterling 1997, op. cit., n. 21, p. 398.
87
At the same time as Eggert and Rolston observe, a vote in favour of this proposal would allow for therapeutic abortions,
even within the confines of the Irish State. See inter alia Eggert and Rolston 1994, op. cit., n. 64, p. 169 and Ward 1994,
op. cit., n. 49, p. 406.
88
The proposal read: ‘It shall be unlawful to terminate the life of an unborn unless such termination is necessary to save
the life, as distinct from the health, of the mother where there is an illness or disorder of the mother giving rise to a real
and substantial risk to her life, not being a risk of self-destruction.’
89
The proposal was rejected with 1,079, 297 votes to 572,177. See also Buckley 1998, op. cit., n. 21, p. 290.
15
the threat of suicide as a ground for lawful abortion.
90
If accepted, the new Act would overturn the
X-case, but a narrow majority – consisting of both pro-life and pro-choice supporters
defeated the amendment.
91
– again
92
The other two proposals of the 1992 Referendum concerning the freedom to travel abroad to
obtain an abortion (the Thirteenth Amendment) and the provision of abortion information (the
Fourteenth Amendment) were both adopted.
93
Although the rejected Twelfth Amendment was
primarily intended as a correction of the X-case, the adoption of the thirteenth amendment also
influenced the interpretation of that ruling. Any uncertainty as to whether women were only
allowed to travel abroad where the pregnancy posed a substantial risk to the life of the mother,
was now removed.
94
The two new paragraphs to Article 40.3.3º of the Irish Constitution provide:
‘This subsection shall not limit freedom to travel between the State and another state.
This subsection shall not limit freedom to obtain or make available, in the State, subject
to such conditions as may be laid down by law, information relating to services lawfully
available in another state.’
95
The first line of this Amendment excludes any criminal prosecution of women who have obtained
an abortion abroad. As regards the second line, legislation clarifying the conditions under which
information on abortion services could be disseminated was desired, but during several years –
although announced – the government failed to adopt such legislation.
90
96
In 1995 the Regulation
Section 1 of the Bill provided for a new definition of abortion as ‘the intentional destruction by any means of unborn
human life after implantation in the womb of a woman’.
91
Mercurio 2003, op. cit., n. 41, p. 172-173. See also S.J. Johansen, ‘Clearly Ambiguous: A Visitor’s View of the Irish
Abortion Referendum of 2002’, 25 Loyola of Los Angeles International & Comparative Law Review (2003), p. 216-234,
who explains that the wording of the Referendum was fraught with ambiguities.
92
The proposal was rejected with 50.42% against and 49.58% in favour. As Mullally observes, this proposal differed from
the similar 1992 proposal, ‘in that it protected the fetus’ right to life only following implantation in the womb, thereby
allowing for the use of contraceptives such as the morning-after pill.’ Mullally 2006, op. cit., n. 55, p. 633. See also
Johansen 2003, op. cit., n. 90, p. 216 and 232-234.
93
The Thirteenth Amendment was adopted with 1,035,308 votes to 624,059. The Fourteenth Amendment was adopted
with 992,833 votes to 665,106.
94
See Koegler 1996, op. cit., n. 21, p. 1136.
95
Thirteenth Amendment of the Constitution Act, No. 13 (23 December 1992) and Fourteenth Amendment of the
Constitution Act, No. 14 (23 December 1992). These amendments have been described as ‘badly thought out and badly
worded’. B. McCracken, ‘The Irish Constitution – an overview’, in: Human Rights, the Citizen and the State. South African
and Irish Approaches, Dublin: Round Hall Sweet & Maxwell, 2001, p. 60.
96
See Ward 1994, op. cit., n. 49, p. 407; Koegler 1996, op. cit., n. 21, p. 1136; Sterling 1997, op. cit., n. 21, p. 385;
Buckley 1998, op. cit., n. 21, p. 290; Mercurio 2003, op. cit., n. 41, p. 166 and Mullally 2006, op. cit., n. 55, p. 629.
16
of Information (Services outside the State for Termination of Pregnancies) Bill (1995) was
enacted.
97
The Act has been referred to as ‘the culmination of years of litigation and controversy
over abortion rights under Irish and EU law’.
98
It delineates how, and under what circumstances,
publishers of abortion material and organisations offering pregnancy counselling can disseminate
information concerning abortion, including the absolute prohibition of advocating or encouraging
abortion in any manner.
99
By virtue of this Act women in Ireland are entitled to receive information
about abortion services, provided that that information does not advocate or promote the
termination of a pregnancy.
100
Before its enactment, the 1995 Act was referred by the President
to the Supreme Court for a review of its constitutionality.
constitutionality of the Bill
constitutional challenge.
102
103
101
The Supreme Court upheld the
, so that the 1995 Act thereby became immune from future
The Court held that the Bill did not constitute an unjust attack on the
constitutional rights of the unborn or on the constitutional rights of the mother or any other person
or persons, and concluded that a fair and reasonable balance between the various constitutional
rights in question had been struck by the legislature.
104
Mercurio thinks that the Supreme Court
had no choice but to permit the right to obtain information regarding abortion services, given its
own decisions and judgments from the ECtHR and the ECJ. According to Sterling, the Supreme
97
See Schweppe 2001, op. cit., n. 55, p. 145 and D. O’Connor, ‘Limiting “public morality” exceptions to free movement in
Europe: Ireland’s role in a changing European Union’, 22 Brooklyn Journal of International Law (1997), p. 708.
98
Sterling 1997, op. cit., n. 21, p. 386.
99
Koegler 1996, op. cit., n. 21, p. 1137 and Mercurio 2003, op. cit., n. 41, p. 167. Koegler remarks that there is likely to be
some confusion as to the boundary between advocacy and non-advocacy in the context of pregnancy counselling.
Koegler 1996, op. cit., n. 21, p. 1143.
100
Section 3 of the Act. See Schweppe 2001, op. cit., n. 55, p. 145 and Johansen 2003, op. cit., n. 90, p. 215.
101
By virtue of Article 26.1.1 of the Irish Constitution the President may, after consultation with the Council of State, refer a
bill passed by both Houses of Parliament to the Supreme Court for a decision on the question as to whether such Bill or
any specified provision or provisions of such bill is or are repugnant to this Constitution or to any provision thereof.
Although some type of bills are excluded, the President has total discretion in referring any Bill. The President shall not
sign any Bill the subject of a reference to the Supreme Court pending the pronouncement of the decision of the Court
(Article 46.3 Irish Constitution). The Court has to give a ruling within 60 days. If the Supreme Court decides that any
provision of a Bill is repugnant to the Constitution or to any provision thereof, the President must decline to sign such Bill.
See also Koegler 1996, op. cit., n. 21, p. 1139 and McCracken 2001, op. cit., n. 94, p. 56-57.
102
Pursuant to Article 26 of the Irish Constitution the President may refer any bill to the Supreme Court for a determination
of whether the bill is repugnant to any provision of the Constitution. Re Article 26 and the Regulation of Information
(Services outside the State for Termination of Pregnancies) Bill (1995) [1995] 1 IR 1 and 2 ILRM. 81, 107.
103
Article 34.3.3 of the Irish Constitution.
104
See Schweppe 2001, op. cit., n. 55, p. 146. As various commentators have observed, this decision is significant, as for the
first time the Court held that amendments to the Constitution that violate natural law are acceptable. The Court considered
that natural law was not antecedent and superior to the Constitution. O’Connor 1997, op. cit., n. 97, p. 708-710; Buckley
1998, op. cit., n. 21, p. 291 and A. O'Sullivan, ‘Same-sex Marriage and the Irish Constitution’, 13 The International Journal
of Human Rights (2009), p. 479.
17
Court decision ‘reconciled the legal and political changes in Ireland’s abortion history to bring
consistency to its abortion law.’
105
2.3.6. The Irish abortion law and the European Arrest Warrant
The Tampere European Council of 1999 had called on Member States to make the principle of
mutual recognition the cornerstone of a true European law-enforcement area. Consequently in
2001, the European Commission proposed the European arrest warrant, which was designed to
replace the existing extradition system by requiring each national judicial authority to recognise,
ipso facto, and with a minimum of formalities, requests for the surrender of a person made by the
judicial authority of another Member State. The adoption of the Council Framework Decision on
the European Arrest Warrant
107
States.
106
, was preceded by serious discussions amongst the Member
Ireland was aware of the fear of other Member States that it would request for the
extradition of persons suspected of having committed an abortion.
108
The Irish Minister of Justice
however opposed to the Dutch proposal for a negative list to the Framework Decision, which
would exclude certain issues, such as euthanasia, abortion and certain drug offences from the
scope of application of the European Arrest Warrant.109 The resulting compromise was a list of
offences which may give rise to surrender without verification of the double criminality of the act,
provided the offences are punishable in the issuing Member State by a custodial sentence of at
least three years. On this list offences like terrorism, trafficking in human beings, corruption,
participation in a criminal organisation, counterfeiting currency, murder, racism and xenophobia,
105
Sterling 1997, op. cit., n. 21, p. 400.
106
Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender
procedures between Member States, OJ EC L-190, (18.07.2002). Amended by Framework Decision 2009/299/JHA of 28
March 2009, OJ EC L 81 (27.3.2009). The Commission proposal is published in OJ C 332 E, 27.11.2001, p. 305.
107
Until that time the double criminality rule was the basic principle of the existing extradition system: each request for
surrender could only be granted if the act for which surrender was requested constituted an offence under the law of the
executing Member State. In order to simplify and speed up extradition procedures, the Commission proposed to abolish
this rule, but this proposal encountered strong protest from Member States. Ireland, the Netherlands, Germany and
Denmark in particular advocated application of the double criminality rule to all offences. See ‘Justice and home affairs:
MEPs split over commission anti terrorism package’, Europe Information Service, European Report 10 October 2001.
108
Compare the contribution of Mr. Deasy in Dáil Éireann - Volume 576 - 05 December 2003, online available at
http://historical-debates.oireachtas.ie/en.toc.dail.html (last accessed 10.04.2010). See also D. Staunton, ‘Disagreements
slow plans for anti-terrorism laws in EU; A proposed European arrest warrant has caused clashes among states, writes
Denis Staunton’, The Irish Times 17 October 2001, p. 13
109
Staunton 2001, op. cit., n. 107, p. 13. During Parliamentary debates concerning the implementation of the European
Arrest Warrant in Ireland, it was pointed out that no consensus existed about abortion in the EU. There are however no
specific provisions concerning abortion taken up in the implementing Act, neither does the Explanatory Memorandum to
the Act also address the issue. As regards the double criminality rule, Ireland has fully implemented the Framework
Decision. Compare the contribution of Mr. Eamon Ryan in Dáil Éireann - Volume 576 - 05 December 2003 (http://historicaldebates.oireachtas.ie/en.toc.dail.html (last accessed 10.04.2010); European Arrest Warrant Act, no. 45 of 2003.
18
rape, trafficking in stolen vehicles and fraud, are taken up.110 For other criminal acts the double
criminality rule still applies. This means that a request for extradition on the suspicion of having
terminated a pregnancy – even though perceived by some as murder – is subject to the double
criminality rule. Consequently abortion doctors in other Member States do not have to fear to be
extradited to Ireland on this ground.
2.3.7 Women on Waves appears on the scene
The Irish abortion tourism issue has been further complicated by Dutch pro-abortion organisation
Women on Waves
111
which in 2001 announced its intention to facilitate Irish women who wished
to have an abortion by bringing foreign abortion possibilities closer to them, instead of requiring
from them to travel abroad. In June 2001 the ship Aurora of Women on Waves set sail to Ireland.
The organisation’s plan was to provide reproductive health services in a mobile abortion clinic on
the ship, including distribution of the abortion pill, outside Ireland's territorial waters, and through
that activity to publicise the abortion tourism. This would be possible because on the ship, sailing
under the Dutch flag, the far more liberalised Dutch abortion law would apply. The action was
widely reported in the international media.
sail to
113
112
Ireland was the first state the Dutch organisation set
, and – possibly consequently – Women on Waves encountered some problems in
obtaining a license under Dutch law to provide terminations after 45 days of pregnancy.
114
Three
days before the planned sailing, the Dutch Minister of Health announced an inspection of the
clinic to determine whether the organisation could be licensed for first trimester abortion
provision. The inspection was planned for a date three weeks after the planned trip to Ireland.
Women on Waves decided to head for Ireland anyway, but a debate in Dutch Parliament about its
licence, left the organisation with serious worries about whether it would be prosecuted once back
in the Netherlands.
110
115
It therefore decided not to procure any abortions in its mobile clinic on
On the basis of Article 2 of the Framework Decision, the Council may extend the list of offences for which the double
criminality rule does not apply.
111
Women on Waves was set up in 1999 and its mission is to prevent unwanted pregnancy and unsafe abortions
throughout the world. See www.womenonwaves.org.
112
For an overview of the media coverage, see http://www.womenonwaves.org/article-99-en.html. The organisation
claims that the visit to Ireland created front-page news all over the world, from Brazil to Japan, and was covered by BBC
World, CNN and numerous other news agencies. An online opinion poll by CNN with 16,500 participants showed that 49
per cent were in favour of the ship's activities.
113
As will be discussed below, in later campaigns Women on Waves went to Poland (2003), Portugal (2004) and Spain
(2008).
114
Women on Waves was sailing under a Dutch flag and according to Dutch abortion law a clinic needs a special licence
to provide terminations after 45 days of pregnancy. The abortion pill, mifepristone + misoprostol, has been registered only
for use up to 49 days of pregnancy in the Netherlands, which means its use falls outside the requirement to get
authorization to provide the service under Dutch law
115
See also ‘Abortusboot niet te pakken; Borst verwacht dat arts 'verantwoordelijk handelt', Trouw 13 June 2001, p. 1;
‘Dutch team faces jail if abortions go ahead’, The Irish Times 13 June 2001, p. 8.
19
board of the ship. At the same time it also did not have enough abortion pills on hand to meet the
demand it was faced with.
116
Women on Waves claims to have been contacted ‘by women who
had been raped, schoolgirls who could not find a feasible excuse to go to England for a couple of
days, mothers who could not pay for childcare during their journey to England, and political
refugees who did not have the papers to travel and already had an uncertain future.’ It counselled
women with unwanted pregnancies, did pregnancy tests, did ultrasound scans to establish
duration of pregnancy and provided information. It also distributed contraceptives of all types as
well as the morning-after pill. In 2002 the Dutch Minister of Health refused to issue the requested
license
117
, but nevertheless permitted the organisation to distribute the abortion pill RU486 – that
can terminate a pregnancy up until 16 days of pregnancy – on the condition that a gynaecologist
would be on board of the ship. Women on Waves successfully appealed against the refusal to
issue a license and in November 2008 the Dutch Minister of Health finally granted a license for
abortion after 16 days of pregnancy.
118
The media reported in 2002 that Women on Waves
planned to return to Ireland now that it had a permit to distribute abortion pills, but this was never
put into practice.
119
2.3.8 New applications with the ECtHR about the Irish abortion law
Soon after the 2002 referendum, an Irish woman lodged a complaint with the European Court of
Human Rights about the need to travel abroad to have an abortion in the case of a lethal foetal
abnormality and about the restrictions for which the 1995 Regulation of Information (Services
outside the State for Termination of Pregnancies) Act provided.
120
She based her claim upon
Articles 3, 8 and 10 of the Convention. The applicant submitted that she was obliged to research
abortion options in the United Kingdom (UK) and to travel abroad to be treated by unknown
medical personnel in an unknown hospital, without involvement of her treating doctor. She
maintained that certain follow-up matters were not available in Ireland following an abortion
abroad and, with two children in Ireland, she could not remain in the UK for counselling there. The
Court did not come to a ruling upon the merits of the case; in its decision of 27 June 2006, the
ECtHR declared her application inadmissible because the applicant did not comply with the
116
On its website the organisation claims that after five days, 300 women had contacted the ship's hotline. See
www.womenonwaves.org.
117
‘Abortusboot krijgt geen vergunning van Borst’, Algemeen Dagblad 9 February 2002, p. 3.
118
On 3 May 2006 the Administrative Law Department of the Dutch Council of State (Afdeling Bestuursrechtspraak Raad
van State) ruled that the Minister had not paid sufficient attention to the specific situation of Women on Waves and
ordered the Minister to reconsider the matter. Administrative Law Division of the Council of State (Afdeling
Bestuursrechtspraak Raad van State) 3 May 2006, LJN AW7365 , JB 2006/ 173 and GJ 2006/99.
119
C. Cullen, ‘Fury as abortion ship sails back to Ireland’, The News of the World, 27 April 2003; ‘Dutch floating abortion
clinic ready to sail again’, The Irish Times, 2 July 2002, p. 3; S. O’Hara, ‘Abortion ship back’, The Mirror, 8 July 2002, p. 2;
‘First floating abortion clinic legalised: Anger as Dutch activists win right to offer abortion pill’, The Guardian, 2 July 2002.
120
ECtHR decision of 27 June 2006, D. v. Ireland, appl. no. 26499/02.
20
requirement to exhaust domestic remedies as regards the availability of abortion in Ireland in the
case of fatal foetal abnormality.
121
The Court once again held however that it considered abortion
issues to be up to the national courts ‘particularly when the central issue requires a complex and
sensitive balancing of equal rights to life and demands a delicate analysis of country-specific
values and morals.’
122
When it comes to the rights of the unborn child, the ECtHR has never taken a strong position. In
the case of Vo v. France (2004)
123
, the Court observed that ‘if the unborn do have a “right” to “life”,
124
it is implicitly limited by the mother’s rights and interests.’
The Court did not rule out the
possibility that in certain circumstances safeguards may be extended to the unborn child
125
, but it
did consider it neither desirable, nor even possible to answer in the abstract the question whether
the unborn child is a person for the purposes of Article 2 (the right to life) of the Convention.
Some authors have argued that from the case of Tysiąc v. Poland (2007)
abortion can be deducted,
128
127
126
a right to therapeutic
but it is submitted here that it is somewhat premature to draw this
conclusion. In its judgment in this case the ECtHR held explicitly that it did not consider it to be its
task to examine whether the Convention guarantees a right to have an abortion.
121
129
Thus, the
In the absence of a domestic decision, the ECtHR held it impossible to foresee that Article 40.3.3 of the Irish
Constitution clearly excluded an abortion in the applicant’s situation in Ireland. The Court acknowledged that Article 40.3.3
had to be understood as excluding a liberal abortion regime, but considered that the Irish courts were nonetheless unlikely
to interpret the provision with remorseless logic particularly when the facts were exceptional. The Court held it possible
that the Irish court might in fact allow for her abortion to be carried out, through a further interpretation of the term
‘unborn’. If it had been established that there was no realistic prospect of the foetus being born alive, then there was ‘at
least a tenable’ argument which would be seriously considered by the domestic courts to the effect that the foetus was not
an ‘unborn’ for the purposes of Article 40.3.3 or that, even if it was an ‘unborn’, its right to life was not actually engaged as
it had no prospect of life outside the womb. ECtHR decision of 27 June 2006, D. v. Ireland, appl. no. 26499/02, para. 69
and 103-104.
122
ECtHR decision of 28 June 2006, D. v. Ireland, appl. no. 26499/02, para. 90.
123
ECtHR [GC] judgment of 8 July 2004, Vo v. France, appl. no. 53924/00. The rights of the father-to-be play only
asubsidiary role in the ECtHR’s case-law. See EcieHR decision of 13 May 1980, X. v. the United Kingdom, appl. no.
8416/79, EcieHR decision of 19 May 1992, Hercz v. Norway, appl. no. 17004/90 and ECtHR decision of 5 September
2002, Boso v. Italy, appl. no. 50490/99.
124
Idem, para. 80.
125
Idem, para 80.
126
Idem, para. 85.
127
ECtHR judgment of 20 March 2007, Tysiąc v. Poland, appl. no. 5410/03, para. 103.
128
N. Priaulx, ‘Testing the Margin of Appreciation: Therapeutic Abortion, Reproductive ‘Rights’ and the Intriguing Case of
Tysiąc v. Poland’, in European Journal of Health Law , 2008, p. 375.
129
ECtHR judgment of 20 March 2007, Tysiąc v. Poland, appl. no. 5410/03, para. 103. In his dissenting opinion to the case,
Judge Bonello considered: ‘In this case the Court was neither concerned with any abstract right to abortion, nor, equally so,
with any fundamental human right to abortion lying low somewhere in the penumbral fringes of the Convention.’ . As will be
discussed in Part V, the Court (in para. 116) chose a pragmatic procedural approach and found that ‘once the legislature
decides to allow abortion, it must not structure its legal framework in a way which would limit real possibilities to obtain it.’
21
ECtHR has never recognised an explicit right to abortion and left the States a wide margin of
appreciation in deciding such issues.
Currently a case is pending before the Grand Chamber of the ECtHR concerning an application
against Ireland lodged by yet three other women residing in Ireland.
130
They all claim that, given
their financial situation and/or their state of health, they should be allowed to have an abortion
within Ireland, instead of being forced to travel to the United Kingdom to procure one. The
impossibility for them to have an abortion in Ireland places an excessive burden on them, making
their abortion procedures unnecessarily expensive, complicated and traumatic, they claim. All
three applicants complain that the restriction on abortion stigmatises and humiliates them and
risks damaging their health in breach of Article 3 of the Convention. Relying on Article 8, they
argue that the fact that it is open to women – provided they have sufficient resources – to travel
outside Ireland to have an abortion defeats the aim of the restriction and the fact that abortion is
available in Ireland only in very limited circumstances is disproportionate and excessive. One
applicant furthermore complains that the restriction on abortion, and the lack of clear legal
guidelines regarding the circumstances in which a woman may have an abortion to save her life,
infringes upon her right to life under Article 2 of the Convention.
131
The case has been referred to
the Grand Chamber of the Court which held a hearing on 9 December 2009. It is submitted that
on the one hand, one might expect that this case will be declared inadmissible on the same
grounds as the D case was, namely for a failure to exhaust domestic remedies. On the other
hand, the Chamber has relinquished jurisdiction in this case in favour of the Grand Chamber, which
may be an indication that a substantive ruling will be given on the matter.
2.3.10 The Irish abortion Protocol to the Lisbon Treaty
In the meantime, the Irish government considered it necessary to protect the national abortion
position against any further European influence. While Protocol 17 to the Maastricht Treaty had
been partly revoked by the Solemn Declaration of the Irish Government of 1992 (see section
2.3.3 above), the exact same text was annexed to the defeated Treaty establishing a Constitution
for Europe
132
and is now annexed to the Lisbon Treaty. Protocol 35 to the Treaty on European
Union as currently in force reads:
130
Application no. 25579/05 by A, B and C against Ireland, lodged on 15 July 2005. On 9 December 2009, the Grand
Chamber of the ECtHR held a hearing in this case.
131
The applicants furthermore invoke Articles 13 (right to an effective remedy) and 14 (prohibition of discrimination) of the
Convention.
132
Protocol 31 on Article 40.3.3 of the Constitution of Ireland, to the (never adopted) Treaty establishing a Constitution for
Europe and to the Treaty establishing the European Atomic Energy Community, OJ (16.12.2004) C310/377.
22
‘Nothing in the Treaties, or in the Treaty establishing the European Atomic Energy
Community, or in the Treaties or Acts modifying or supplementing those Treaties, shall
affect the application in Ireland of Article 40.3.3 of the Constitution of Ireland.’
133
By virtue of Article 51 TEU the Protocols and Annexes to the Treaties form an integral part
thereof and consequently the ECJ has jurisdiction to interpret it. As yet, the Protocol has not been
invoked in any proceedings before the ECJ and it remains to be seen whether it ever will. As will
be discussed in section 3.4.2 the Protocol seems to block any substantive challenges to the Irish
abortion law on the basis of EU law.
2.4 Other examples of abortion tourism within the European Union
Ireland is not the only EU Member State with restrictive abortion laws. Also in Poland and Malta
abortion is legal in very limited circumstances only, and Spain and Portugal only recently
legalised abortion. Not all Member States keep such detailed abortion statistics as the UK
Department of Health does, but there are sufficient indications that also women resident in these
European countries seek abortions abroad.
134
It is therefore not surprising that Dutch pro-abortion
organisation Women on Waves also set sail to various of these EU Member States; in 2003 it
went to Poland, a year later set sail to Portugal and in 2008 it arrived in Spain. On all occasions,
the organisation was again faced with strong protest. The Portuguese authorities even dispatched
warships to prohibit the abortion boat from entering Portuguese territorial waters.
133
135
Protocol 35 on Article 40.3.3 of the Constitution of Ireland to the Treaty on European Union and to the Treaty on the
Functioning of the European Union and to the Treaty establishing the European Atomic Energy Community OJ (9.5.2008)
C 115/321.
134
The number of Polish and Maltese women having in abortion in the UK as registered by the UK Health Department is
relatively small, presumably due to the geographical distance between these countries. See
http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsStatistics/DH_099285. The UK Newspaper
The Daily Telegraph reported on 15 March 2010 however that the Polish Federation for Women and Family Planning
estimates that ‘each year thousands of Polish women wanting an abortion travel to Britain’. See
http://www.telegraph.co.uk/news/worldnews/europe/poland/7441990/Polish-women-encouraged-to-come-to-UK-for-freeabortions-on-NHS.html (last accessed 09.04.2010). The facts of the ECtHR decision of 31 January 2002 in the case of
Tocarczyk v. Poland, appl. no. 51792/99, furthermore suggest that there are also Polish women who travel to Ukraine for
abortions.
135
Women on Waves and two Portuguese organisations consequently lodged a complaint before the ECtHR. Relying on
inter alia Article 5 (right to liberty and security), Article 2 of Protocol No. 4 (freedom of movement) and Article 10 (freedom
of expression) they claimed that the refusal to allow the abortion ship to enter Portuguese territorial waters was illegal.
The Court held unanimously that the applicants’ freedom of expression had been violated. It considered that the
restrictions imposed by the authorities had affected the substance of the ideas and information imparted by the applicant
associations. The ECtHR noted that the use of the ship for the events planned by the applicant associations had been
23
Also women resident in Member States where abortion is provided for by law, may wish to go to
another Member State to enjoy the even more liberal regime of that destination country.
136
Spain
for example – once a country with very restrictive abortion laws – now absorbs a lot of cases from
neighbouring countries such as France, Italy and Portugal, where the laws are more restrictive
once the gestational age is above twelve weeks.
137
Even in the Netherlands – in the abortion
tourism context primarily referred to as destination country – Parliamentary questions have been
posed about news reports concerning Dutch women who were referred to foreign abortion clinics
for an abortion after 24 weeks of pregnancy if the foetus was diagnosed with foetal anomalies.
138
In 2005, the Dutch Deputy Minister of Health could not give any exact statistics but maintained
that this only occurred a few times a year. She furthermore informed Parliament that a Dutch
doctor who referred a woman for such an abortion abroad would not be criminally liable.
139
The above facts – albeit far from an complete overview of the actual scale of abortion tourism
within the EU – shows that the Irish example is not isolated and thus that the analysis in the
following parts of this paper may prove relevant for other Member States as well. It may even
prove relevant for other cases where fundamental rights and fundamental freedoms interact (see
crucially important to them and that it was in line with the activities which Women on Waves had carried out for some time
in other European states. In the Court’s view there was insufficient strong evidence of any intention on the part of the
applicant associations to deliberately breach Portuguese abortion legislation. The ECtHR furthermore underlined the
deterrent effect for freedom of expression in general of such a radical act as dispatching a warship. In seeking to prevent
disorder and to protect health, the Portuguese authorities could have resorted to other, less restrictive means, such as
seizing the medicines on board. It therefore concluded that the interference by the authorities had been disproportionate
to the aims pursued and found a violation of Article 10 ECHR. The Court held it unnecessary to examine separately the
complaints under the other Articles of the Convention. ECtHR judgment of 2 March 2009, Women on Waves and Others v.
Portugal, application no. 31276/05.
136
Thaddeus M. Baklinski, ‘Swedish Parliament Votes to Allow Abortion Tourism, Church leaders have vowed to work for
government defeat over issue’, LifeSiteNews 20 November 2007, online available at
http://www.lifesitenews.com/ldn/2007/nov/07112005.html (last accessed 02.04.2010).
137
M. Vidot Sp, Why abortion is performed in Spain until 26 weeks, presentation for the International Federation of
Professional Abortion and Contraception Associates (FIAPAC), Rome 2006, online available at
http://www.fiapac.org/media/Roma/FIAPAC_Rome_2006_Sa_1100_Vidot.pdf?phpMyAdmin=LNnPTp9uIV39bMcBypzPD84EE3. FIAPAC is an organisation of people working in the field of abortion and contraception. On its website
it explains that ‘during the international Conference "Abortion Matters" in Amsterdam 1996, the need for a federation of
professionals in the field of abortion and contraception became obvious. Therefore FIAPAC was founded on Jan-25-1997
with the aim of providing a platform for all practical and ethical aspects of unwanted pregnancy and abortion.’ See
http://www.fiapac.org/pages/en/index.php (last accessed 08.04.2010).
138
Parliamentary Proceedings of the Dutch Lower House of the States-General (Handelingen II ) 2004/05, no. 71 p.
4362–4364. In the Netherlands abortion is only possible until 24 weeks of pregnancy; Britain and Spain allow abortions
after 24 weeks of pregnancy.
139
Parliamentary Documents of the Dutch Lower House of the States-General (Kamerstukken II) 2004/05, 29 800 XVI, no.
211, p. 1-2.
24
also Part V). The following part will first discuss the relevant perspectives and interests of the
actors involved.
III – THE IRISH ABORTION TOURISM FROM THE PERSPECTIVES OF THREE ACTORS
In this part the interests of three abstract actors – the individual, the state and the European
Union – involved in the Irish abortion tourism case, will be sketched. It will show that these
interests are not always sharply distinguished from one another. For instance, the Irish State has
taken up the interest of the unborn child (which could also be defined as an individual interest)
and made that part of the Irish national identity, it defined it as a public interest.
140
Furthermore,
there are various factors one can take into account when describing such interests. The following
sections do not claim to give an exhaustive overview of all possible relevant factors, but aim to
set out the most prominent interests involved in the Irish abortion tourism case.
3.1 The interests of the individual in the abortion tourism case
For the individual, the present situation is that the level of protection of his or her fundamental
rights is to a great extent dependent on his or her place of residence. In the case of Irish abortion
tourism, the relevant individual interests include first of all those of women who wish to obtain an
abortion within Ireland, but are forced to go to another country or even to resort to illegal
abortions within Ireland. The interests or alleged rights of the unborn child may also be relevant,
but as they are not deliberately making use of any free movement rights, these interests will here
be left out of consideration. They will be discussed in the following section though, as a more
abstract interest protected by the state of Ireland. The individual interests of those advocating the
rights of the unborn child will be briefly discussed at the end of this section.
The removal of the ban on information about foreign abortion services has positively influenced
the interests of Irish abortion women. Also the explicit incorporation in the Irish Constitution of the
right to travel abroad for that purpose, has confirmed their interests. Nevertheless, some of the
women concerned still argue that they carry unduly harsh emotional, financial and medical
burdens, because no abortion is available within Ireland.
140
141
Their abortion procedures are held to
For further reading on the definition of the concept ‘the public interest’, see M. Feintuck, ‘The Public Interest’ in
Regulation, Oxford University Press 2004.
141
ECtHR decision of 27 June 2006, D. v. Ireland, appl. no. 26499/02.
25
be unnecessarily expensive, complicated and traumatic. It is furthermore submitted that certain
groups in society, such as women living in poverty, young women and asylum seekers are
suffering most under restrictive abortion laws.
142
In a recent report on Ireland’s abortion laws,
Human Rights Watch (HRW) endorses these conclusions.
143
The emotional burden may be the least concrete measurable burden. In the specific abortion
context individual women may experience great distress and anguish and may feel stigmatised.
HRW discerns ‘a profound and pervasive sense of shame and guilt caused by the stigma
attached to abortion in Ireland.’
144
‘Having to travel abroad for a procedure at a time when many
women are already in distress because of an unwanted or unhealthy pregnancy was a major
source of anxiety.’
145
The fact that they have no choice but to be treated by unknown medical
personnel in an unknown hospital, without involvement of their own doctors, may also constitute a
source for distress.
146
Next to the emotional burden, the more practical financial burden of having an abortion abroad
also has a bearing on the women’s interests. The Irish Family Planning Association (IFPA) holds
that the costs of an abortion may lay in the range from € 600 to € 2,000, depending on the
country in which and on the procedure through which the abortion is carried out.
147
It is not clear
whether direct costs, such as travel and accommodation, or indirect costs, such as childcare, loss
of income and the costs of a traveling companion
148
are included in that estimate. Human Rights
Watch (HRW) in its report refers to Irish service providers estimating the total costs to be between
€ 800 and € 1000.
149
The organisation notes that by comparison, the median salary in Ireland
fluctuates around € 30,000 per year.
150
It concludes that ‘for someone living under the poverty
line, the cost of an abortion could easily represent more than a monthly salary’.
142
151
HRW
Women on Waves on its website. According to HRW barriers to information about are higher in non-Irish and in resource-
poor communities. Human Rights Watch, A State of Isolation, Access to Abortion for Women in Ireland, Human Rights
Watch 2010, online available at http://www.hrw.org/en/reports/2010/01/28/state-isolation-0, p. 24.
143
Human Rights Watch 2010, op. cit., n. 5.
144
Idem, p. 35
145
Idem, p. 35.
146
As claimed by the applicant in the D-case. ECtHR decision of 27 June 2006, D. v. Ireland, appl. no. 26499/02.
147
http://www.ifpa.ie/index.php/eng/Pregnancy-Counselling/About-Abortion.
148
Human Rights Watch 2010, op. cit., n. 5, p. 31.
149
Human Rights Watch telephonic interview with Rosie Toner, Director of Counseling, Irish Family Planning Association,
August 25, 2008 as referred to in Human Rights Watch 2010, op. cit., n. 5, p. 31, footnote 98.
150
In footnote 99 the report refers to Payscale, “Median Salary Per Job, Country: Ireland” at
http://www.payscale.com/research/IE/Country=Ireland/Salary. Human Rights Watch 2010, op. cit., n. 5, p. 32.
151
In footnote 100 the report refers to the Conference of Religious of Ireland (CORI Justice), “Income and Poverty,” at
http://www.cori.ie/Justice/Specific_Policy_Issues/27-incomepoverty. The report furthermore outlines that ‘service
providers interviewed by Human Rights Watch confirmed how difficult it is for many women to raise the money to travel
26
furthermore thinks that the current economic climate ‘will inevitably create new financial barriers
that will further limit access, especially for women who are poor or unemployed.’
152
It claims that
for women who are in the asylum seeking process in Ireland the costs of traveling to obtain an
abortion are plainly out of reach.
153
Asylum seekers ‘face additional costs as they have no travel
documents, and must therefore apply and pay for emergency temporary travel documents, which
are issued by the Department of Justice, Equality and Law Reform. They will also have to apply
and pay for visas to enter the UK, or Schengen visas to enter into a European Union (EU)
country’, HRW observes.
154
Upon inquiry with the Dublin Well Woman Centre it appeared that no
Irish legislation concerning financial reimbursement for abortions obtained abroad exists.
155
Incidentally Irish authorities have reimbursed abortions for minors. The counselling agency
furthermore expected that also abortions performed on women in state custody will be paid for by
the State, but it underlined that it did not have any statistics to that effect. Women in small
communities may sometimes rely on private funding within that community. Other women must
finance their abortions themselves.
In certain cases it is practically impossible for women to travel to another state for an abortion or
to stay in the destination country as long as would be desired with regard to the necessary postabortion counselling and care. The woman in the D-case for example claimed that with two
children in Ireland, she could not remain in the UK for counselling there.
because of their immigration status
illness
159
157
156
Others cannot travel
158
, because they are in state custody
or because of an
or disability. HRW points out that these women are faced with ‘a bleak and lonely choice
– continue with an unwanted pregnancy or have an illegal and potentially unsafe abortion.’
160
and the lengths that some must go to to ensure their access to safe and legal abortions’. Human Rights Watch 2010, op.
cit., n. 5, p. 31-32.
152
Idem, p. 2.
153
Idem, p. 32.
154
Idem, p. 32.
155
Email from Alison Begas, Chief Executive of Dublin Well Woman, to the present author, dated 13 November 2006.
156
ECtHR decision of 27 June 2006, D. v. Ireland, appl. no. 26499/02.
157
Human Rights Watch 2010, op. cit., n. 5, p. 16. In August 2003, the Irish newspaper The Times reported that twenty
asylum seekers in Ireland were granted a temporary permit and visa to leave Ireland to travel to the UK for an abortion
and to return to Ireland afterwards. While granting the visa, the authorities had stressed that these concerned highly
exceptional measures. Many others had to resort to illegal means. K. Holland, ‘Asylum-seekers granted visas for UK
abortions’, The Irish Times 30 August 2003, p. 4. Compare Johnson 2004, op. cit., n. 9, p. 201 and J. Burns, ‘Laying down
the law’, Sunday Times 31 October 2004, p. 14.
158
Human Rights Watch 2010, op. cit., n. 5, p. 16
159
As claimed by the third applicant in A, B and C, op. cit., n. 129.
160
Human Rights Watch 2010, op. cit., n. 5, p. 16 and 36.
27
161
Medical risks are furthermore often claimed to be involved in the abortion tourism.
As HRW
submits, ‘[…] many women struggle to access timely, accurate, and complete information about
legal abortion services abroad. As a result, they experience delays in accessing care, which
heightens the possibility of health complications from the intervention. The delays also contribute
to the emotional distress that many women experience.’
162
Some have argued that certain follow-
up matters following an abortion abroad are not available in Ireland.
163
However, the Dublin Well
Woman Centre and the Irish Family Planning Association offer a free post abortion medical
check-ups and counseling.
164
It would be too simplistic to describe the individual’s interest only as a desire for legal abortions in
Ireland. Naturally there will also be many individuals who identify themselves with the interest of
preserving Irish national identity and of attaching the greatest importance to the sanctity of the
unborn life. These individuals are for example represented by the Society for the Protection of the
Unborn Child (SPUC) which advocate the sanctity of the unborn life. They may protest against
any liberalising development, but they will not have legal standing before the ECtHR to complain
about the law in abstracto – the Convention excludes applications by way of actio popularis
although they may seek leave to intervene in cases brought by others before the ECtHR.
165
166
,
From
an EU law perspective, it can furthermore be questioned to what extent NGO’s are obliged under
Union law not to obstruct the free movement. Is an NGO like SPUC entitled to actively pressurize
women not to make use of their free movement rights?
167
161
As claimed by the second and third applicant in A, B and C, op. cit., n. 129.
162
Human Rights Watch 2010, op. cit., n. 5, p. 22. The report refers to F. Gary Cunningham, Kenneth L. Leveno , Williams
Obstetrics (2005), chapter 9, where it is held that ‘Abortion is generally a safe medical procedure if carried out under
proper conditions. It is safest when provided within the first eight weeks of the pregnancy. As the pregnancy progresses,
“[t]he relative risk of dying as the consequence of abortion approximately doubles for each 2 weeks after 8 weeks'
gestation".’
163
ECtHR decision of 27 June 2006, D. v. Ireland, appl. no. 26499/02.
164
http://www.wellwomancentre.ie/index.php?p=services and http://www.ifpa.ie/index.php/eng/Pregnancy-
Counselling/About-Abortion.
165
Article 34 ECHR and ECtHR judgment of 6 September 1978, Klass and others v. Germany, appl. no. 5029/71,
para. 33.
166
Rule 44 (2) (a) Rules of Court (Strasbourg, July 2009).
167
Compare Case C-438/05, International Transport Workers’Federation and Finnish Seamen’s Union v. Viking Line ABP
and OU Viking Line Eesti [2007] ECR I-10779 and Case C-341/05, Laval un Partneri Ltd. v. Svenska
Buggnadsarbetareforbundet, Svenska Byggnadsarbetareforbunderts avdelning 1, Buggettan and Svenska
Elektrikerforbundet [2007] ECR I-11767.
28
3.2 The interests of the State in the abortion tourism case
The effectuation of standards of human rights protection of the second group of actors, the EU
Member States, may be subverted by individuals travelling to other states with deviating
standards. This may put the national sovereignty under pressure. For Ireland the protection of the
right to life of the unborn can be regarded as part of the country’s national identity. The availability
of abortion in other Member States, primarily in the UK, however, has continuously challenged
the actual enforcement of the unborn’s right to life. In addition it has put pressure on Ireland to
liberalise its abortion laws. The Irish government has repeatedly and deliberately tried to protect
its national position on abortion from European influence. As discussed, it did so by actively
seeking express protection of the national law in these matters through the adoption of Protocols
to the relevant EC and EU Treaties. The Irish courts have furthermore in certain cases denied the
existence of any European law aspects in domestic procedures in which the abortion laws were
168
challenged or in which SPUC sought to stop the abortion tourism.
To a certain extent Ireland
can be said to have subdued; at least this is true concerning the removal of the ban on abortion
information.
States’ interests in setting their own standards in morally sensitive issues, have been explicitly
recognised by both the ECtHR and the ECJ when developing the doctrines of the margin of
appreciation
168
169
and the margin of discretion
170
respectively. Although the ECJ in Grogan did not
For example, in The Attorney General (Society for the Protection of the Unborn Children (Ireland Ltd) v. Open Door
Counselling Ltd ([1988] IR 593, at 625 and [1988] ILRM 19) the Irish Supreme Court (at 624-625) held that the counselling
agencies had no constitutional right to exercise their freedom of expression, as they were ‘assisting in the ultimate
destruction of the life of the unborn’, whose right to life was expressly guaranteed by the Constitution. Chief Justice Finlay
merely held that ‘no right could constitutionally arise to obtain information the purpose of [..] which was to defeat the
constitutional right to life of the unborn child’. For critique on this ruling see also Hilbert 1994, p. 1134 and Thompson
1994, p. 382. In Grogan (1989) the Supreme Court unanimously granted the injunction sought, asserting that no
Community law regarding services could outweigh the right to life of the unborn as guaranteed by Ireland’s Constitution
(The Society for the Protection of Unborn Children (Ireland) Ltd v. Grogan [1989] IR 753 at 765, [1990] ILRM 350). As
Colvin rightly observed, this reflected a view contrary to the jurisprudence of the Court of Justice regarding the supremacy
of Community law (Colvin 1992, op. cit., n. 18, p. 502). In the controversial X-case (Attorney General v. X [1992] 1 IR 1) –
concerning a 14-year-old girl who was pregnant as a result of multiple rape wished to travel to the UK with her parents to
have an abortion – the High Court (at 286) held that the constitutional right to travel abroad, (recognised as unenumerated
right for the first time in State (K.M.) v. Minister for Foreign Affairs, [1979] I.R. 73, 80-81 (Ir. H. Ct. 1979)) could not be
invoked where the purpose of the travelling was to have an abortion. Justice Costello maintained that the Community
allowed national governments discretion on moral issues. See Weinstein 1992, op. cit., n. 21, p. 191 and Koegler 1996,
op. cit., n. 21, p. 1126.
169
Inter alia ECtHR 7 December 1976, Handyside v. United Kingdom, appl. no. 5493/72.
170
ECJ 14 October 2004, Omega Spielhallen- und Automatenaufstellungs-GmbH t. Oberbürgemeisterin der Bundesstadt
Bonn, C- 36/02, para. 31 referring to ECJ 4 December 1974, Van Duyn t. Home Office, C-41/74, para. 18 and ECJ
27 October 1977, Régina t. Pierre Bouchereau, C-30/77, para. 34.
29
come to the point of according any margin of discretion in the Irish abortion question
171
, Advocate
General (AG) Van Gerven in his opinion in this case held that a margin of discretion should be
accorded in the case at hand, as there was ‘no doubt that values which, in view of their
incorporation in the Constitution, number among “the fundamental values to which a nation
solemnly declares that it adheres” fall within the sphere in which each Member State possesses
an area of discretion “in accordance with its own scale of values and in the form selected by
it”.’
172
He acknowledged that the protection of the unborn enshrined in the Irish Constitution was
regarded in Ireland ‘as forming part of the basic principles of society’, and spoke of ‘a policy
choice of a moral and philosophical nature the assessment of which is a matter for the Member
States’.
173
The ECtHR in Open Door acknowledged that ‘[…] it is evident that the protection afforded under
Irish law to the right to life of the unborn is based on profound moral values concerning the nature
of life which were reflected in the stance of the majority of the Irish people against abortion as
174
expressed in the 1983 referendum.’
As discussed in section 2.3.4, the Court accordingly found
that the national authorities enjoy a wide margin of appreciation in matters of morals, particularly
in an area such as abortion which touches on matters of belief concerning the nature of human
life.
175
This margin of appreciation as accorded in Open Door was also heavily relied on by Irish
Attorney General Gallagher SC in the ECtHR Grand Chamber hearing in A,B and C v. Ireland.
176
The Attorney General recalled that the Court had explicitly recognised the right of each
Contracting State to determine that foetal life is entitled to the protection of Article 2 of the
Convention. On behalf of the Irish government, it was submitted that the purpose of the
applicants was to effectively undermine these two fundamental principles. The application was
held to seek in effect to achieve an alignment of Ireland’s laws with those of other Contracting
States. Gallagher insisted that the protection afforded under Irish law to the right to life of the
unborn was ‘based on profound moral values deeply embedded in the fabric of Irish society and
arrived at through a wholly democratic process involving in all three referenda.’ Under reference
to the Protocols to the Maastricht and Lisbon treaties he held that other EU Members States
171
This was due to the fact that the ECJ (in para. 24) concluded that the prohibition on the distribution of information could
not be regarded as a restriction of free movement.
172
Opinion of Advocate General Van Gerven to Case 159/90, Society for the Protection of Unborn Children Ireland Ltd.
(SPUC) v. Grogan, delivered on 11 June 1991, 1991-8 E.C.R. I-4685, [1991] 3, para. 26.
173
Idem.
174
ECtHR judgment of 29 October 1992, Open Door and Dublin Well Woman v. Ireland, appl. nos. 14234/88 and
14235/88, para. 63.
175
Idem, para. 67.
176
The webcast of this public hearing held on 9 December 2009 in Strasbourg, is online available on
http://www.echr.coe.int/ECHR/EN/Header/Press/Multimedia/Webcasts+of+public+hearings/webcastEN_media?&p_url=20
091209-1/en/ (last accessed 29.03.2010).
30
recognised ‘Ireland’s autonomy to make its own decisions in this vital and fundamental area’. The
Irish government claimed that ‘there is a European consensus that Ireland’s abortion law should
be respected.’
177
Ireland is however not the only Member State whose interests are at stake in abortion tourism; so
are those of other EU Member States, particularly those which function as a country of destination.
Their national health systems may become overburdened as a result of the considerable number of
women seeking an abortion in their country. Although in principle women should pay for their
178
abortion, some may escape this by giving false addresses
or by claiming emergency abortions,
which are covered for – at least in the UK – by the National Health Service (NHS). The British
newspaper The Daily Telegraph reported on 15 March 2010 that several British Members of
Parliament had condemned the news that a Polish pro-abortion group had launched a publicity
campaign advocating traveling to the UK to get free abortions on the NHS as a way of avoiding
Poland's strict laws prohibiting terminations.
179
It was held by a MP that ‘abortions on the NHS are
supposed to be for UK citizens only, but there are always ways to get around that by claiming it is
180
an emergency.’
The Daily Telegraph also reported however that a spokesman from the UK
Department of Health had stressed that it would be very difficult to get a non-emergency procedure
such as a termination on the NHS if the patient is not a UK citizen. Under reciprocal health care
agreements, residents of some countries are exempted from charge for some treatment needs
when they visit the UK, meaning that UK citizens receive similar benefits when they visit those
countries. Whether the Polish abortion women are covered by such a reciprocal agreement is not
clear from the news report. Although more profound research is needed into the actual (financial)
burden for receiving Member States, it may be concluded that in any case their interests are
involved as well. The same goes for Member States with a more liberal regime, who may feel
accused of exporting their national policy choices in morally sensitive cases. Here, one may think of
the Netherlands, where Women on Waves is based. On the basis of Dutch law the Dutch State
cannot refuse the organisation its licenses; on the other hand it may wish not to put its diplomatic
relations with Ireland or other European States, under pressure.
177
Mr O’Donnell on behalf of the Irish government during the Grand Chamber hearing in the case of 9 December 2009.
178
See Human Rights Watch 2010, op. cit., n. 5, p. 15.
179
M. Day, ‘Polish women encouraged to come to UK for 'free abortions' on NHS’, The Daily Telegraph 15 March 2010,
online available at http://www.telegraph.co.uk/news/worldnews/europe/poland/7441990/Polish-women-encouraged-tocome-to-UK-for-free-abortions-on-NHS.html, (last accessed 09.04.2010).
180
Ann Widdecombe, Conservative MP and former shadow health secretary, as quoted in the newspaper article.
31
3.3 The interests of the European Union in the abortion tourism case
The situation becomes even more complicated when the interests of the third actor, the European
Union, are taken into consideration. On the basis of Article 4 (2) TFEU, the Union ‘shall respect
the equality of Member States before the Treaties as well as their national identities, inherent in
their fundamental structures, political and constitutional, inclusive of regional and local selfgovernment.’
181
It can well be argued that the Irish abortion policy forms part of the country’s
national identity (see the previous section about the State’s interests). Thus, in principle this is a
matter for the States to decide, with which the Union should not interfere. But what if, as is the
case in abortion tourism, the internal market is at issue? One may question whether the Union’s
twofold objective to maximize free movement without restrictions, while respecting the national
identities of the Member States, is feasible in a European legal order with such diverse levels of
fundamental rights protection.
It is not an easy task to define the interests of the Union as such, as the European Union not only
consists of various institutions but also of 27 Member States. The European Commission (EC)
may be the most prominent representative of the EU’s interests. Therefore the first question that
will be posed is why the EC never expressed any interest in the abortion tourism case. Thereafter
the ECJ’s approach in the Irish abortion case will be discussed.
3.4.1 The position of the Commission in the Irish abortion case
What has restrained the EC from starting an infringement procedure against Ireland, particularly
at the time when the girl in the X-case was restrained from travelling to the UK for an abortion?
Wherefrom does the EC derive the legitimisation for (not) initiating infringement procedures? The
Commission has considerable discretion in infringement procedures and cannot be required to
take a formal position on a complaint. Hancher and Stauer think that ‘the final decision to proceed
with infringement proceedings is inevitably a political one, and there are many reasons, which can
182
dissuade the Commission from tackling sensitive cases.’
And what was the Commission’s position in the Grogan case? From the opinion of AG Van
Gerven in that case, it appears implicitly that the EC accepted that the termination of pregnancy is
a service within the meaning of the Treaty. The Commission had argued before the Court that
there was no restriction of the free movement. It held that the Irish prohibition on the provision of
181
Article 4 (2) Treaty on European Union. See also M-C Ponthoreau, ‘Interpretations of the National Identity Clause’, in:
S. Baroncelli, C. Spagnolo and L. Talani (eds.), Back to Maastricht: Obstacles to Constitutional reform within the EU
Treaty (1991-2007), Newcastle: Cambridge Scholars Publishing 2008, p. 49-68.
182
L. Hancher and W. Sauter, ‘One step beyond? From Sodemare to Docmorris: The EU’s freedom of establishment case
law concerning healthcare’, 47 CML Rev (2010), p. 129.
32
information about abortions carried out abroad was a non-discriminatory measure, which fell
outside Articles 59 and 60 of the EEC Treaty (now 56 and 57 TFEU).
183
The EC’s approach was
in line with at that time prevailing case-law – which is at present superseded by newer case law
184
– but it was certainly not the only argument the EC could possibly make at the relevant time. Like
AG Van Gerven did, it could have referred to the Opinion of AG Jacobs in Säger, or perhaps yet
to the Court’s judgment in that case,
185
where it was held that even non-discriminatory measures
may fall under the scope of Article 59 of the Treaty.
The above shows that the Commission has always taken a rather reserved position in the Irish
abortion case. It never expressed any interest in it. The exact reason for this may never be given,
but it was for certain not the only option the EC had in this case.
3.4.2 The position of the ECJ in the Irish abortion case
Another actor at the European level is the Court of Justice of the European Union (formerly Court
of Justice of the European Communities). Naturally, its function as an independent judiciary is not
at all comparable to that of the EC. The ECJ has to balance the various interests at stake, and
thereby also explicitly takes the Union’s interests as such – to the extent that these can be
defined – into account. National courts or legislatures may not have to do so explicitly, neither do
individuals in making their choices. Given that fact, it seems justified to subject the judgment of
the ECJ in Grogan to a further analysis. Does the Court balance the various interests involved,
and if so, how? It will furthermore be explored whether any future free movement challenge to the
Irish abortion law before the ECJ is feasible.
In Grogan the ECJ rejected SPUC’s claim that abortion was ‘grossly immoral’ and could not come
within the definition of a service.
186
At the same time, it was cautious in defining the termination of
pregnancy as a service. It did not interpret the term ‘service’ autonomously, but made it
conditional on the national law, by holding that ‘medical termination of pregnancy, performed in
accordance with the law of the State in which it is carried out, constitutes a service within the
meaning of Article 60 of the Treaty’ (now Article 57 TFEU).
187
What justified the fact that the Court
made the definition of abortion as a service, dependent upon national legislation? Would it be
183
Opinion Van Gerven to Grogan, para. 13 and 20.
184
The interpretation of what constitutes a restriction to free movement has been gradually extended to cover national
measures which are not directly discriminatory, ‘but which put domestic providers at an advantage.’, Hancher and Sauter
2010, op. cit., n. 181, p. 127, referring to Joined Cases C-171/07 and C-172/07, Apothekerkammer des Saarlandes et. al
v. Deutscher Apothekerverband and Helga Neumann-Seiwert v Saarland (DocMorris), judgment of 19 May 2009, nyr.
185
Case C-76/90, Manfred Säger v Dennemeyer & Co. Ltd, ECR I-04221 (1991).
186
Op. cit., n. 33.
187
Idem, para. 21.
33
feasible that the ECJ interpreted the term ‘medical treatment’ autonomously, like it did for
example with regard to the term ‘worker’?
188
The Court of Justice has on several occasions firmly
held that certain medical benefits are to be regarded as services for the purposes of Article 60 of
the Treaty (now Article 57 TFEU), and that persons who move to another Member State in order
to receive medical care are recipients of services.
189
In Grogan, the Court could not side pass that
yet established case-law. In response to SPUC’s claim that because of its grossly immoral
character, the provision of abortion could not be regarded as a service, the Court held that
‘whatever the merits of those arguments on the moral plane’, they could not influence the finding
that the termination of pregnancy constitutes a service. Like it did in later cases on lotteries
prostitution
191
190
and
, the Court held that it was not for the Court to substitute its own assessment for that
of the legislatures of the Member States where an allegedly immoral activity is practised legally.
But at the same time the Court built in an extra safety clause. It defined the termination of
pregnancy as a service ‘performed in accordance with the law of the State in which it is carried
out’. In principle this would mean that abortion is a service in – for example – the UK, but is not in
Ireland. If this would have been enough to block any further challenges to the Irish abortion ban
from the free movement perspective, this would have the undesired effect that Member States
may withdraw the benefits of the internal market for certain areas, by criminalising the provision of
certain services. The Irish government however, negotiated Protocol no. 17 to the Maastricht
Treaty (reintroduced as Protocol no. 35 to the Lisbon Treaty as currently in force), which was
intended to block any future challenges to the Irish abortion law before the ECJ.
Secondly, it can be questioned what was behind the Court’s pragmatic approach that the links
between the activities of the students’ unions and the providers of abortion services in the United
Kingdom or elsewhere, were ‘too tenuous’, for the prohibition on the distribution of information to
be regarded as a restriction within the meaning of the EEC Treaty. Tridimas observes a
reluctance with the Court to address the fundamental rights questions and suggests that this
reluctance can be attributed to many factors, amongst which ‘a risk that the national judiciary
might not look favourably on intervention by the Court of Justice’. Tridimas explains, that ‘the
political climate and public opinion did not seem receptive to the imposition of external standards
188
ECJ Case 75/63, Hoekstra v. Bestuur der Bedrijfsvereniging voor Detailhandel en Ambachten, [1964] ECR 177, 184.
189
In Luisi and Carbone (1984) it was yet held that freedom to provide services includes the freedom, for the recipients of
services, to go to another Member State in order to receive a service there, without being obstructed by restrictions, even
in relation to payments, and that persons receiving medical treatment are to be regarded as recipients of services Joined
Cases 286/82 and 26/83 Luisi and Carbone [1984] ECR 377, para. 16. See also C-158/96 [1998] ECR I-1931, Kohll and
Case C-157/99, B.S.M. Geraets-Smits v Stichting Ziekenfonds VGZ and H.T.M. Peerbooms v Stichting CZ Groep
Zorgverzekeringer, Opinion of Advocate General Ruiz-Jarabo Colomer delivered on 18 May 2000, para. 2.
190
Case C-275/92, Schindler [1994] ECR I-1039, para. 32.
191
Case C-268/99, (20 November 2001), Aldona Malgorzata Jany and Others and Staatssecretaris van Justitie, para. 56.
34
on moral issues. Member States may have felt that national policies reflecting basic philosophical
192
and moral choices were unjustifiably being questioned in the name of economic freedoms.’
Although they seem to take a realistic stance, these reasons also give some feelings of unease.
Are these arguments that the ECJ should even take into consideration? What would give the ECJ
legitimisation to do so? The Union’s commitment to respect national identities?
193
How does that
fit with standard tests as applied in free movement case-law? Particularly this legitimisation issue
raises the question as to at what level such issues can best be regulated. Tridimas gives a further
possible reason to the effect that the Court might have been reluctant to adjudicate on such a
highly sensitive matter at a time when proceedings were pending at the European Court of
Human Rights.
194
This is convincing in that the ECHR – and thus the case-law of the ECtHR
interpreting the Convention – has special significance in the Union legal order,
195
as it sets the
minimum level of protection that should be provided under Union law. Another possible reason
may have been a fear for an increased case-load that would follow once such a claim would have
been allowed.
The question what the Court should have ruled if a case similar to Grogan came before it in which
the economic link could be established is outdated by the ECtHR ruling in Open Door and the
subsequent amendment of the Irish Constitution, through which the ban on abortion information
was lifted.
196
Is it nevertheless possible to challenge the abortion ban in itself as incompatible with
Union law? For the ECJ to have jurisdiction an issue must fall within the scope of Union (formerly
Community) Law. In the Irish case, any possible claim seems yet blocked by the Irish Protocol to
the Lisbon Treaty. If the Protocol indeed sufficiently blocks any such claim
197
, no foreign abortion
clinic can claim that its freedom to provide services, or its freedom of establishment is
unjustifiably restricted by the Irish abortion ban. Even without the Irish Protocol such a claim
would be problematic given the Court’s conditional definition of abortion as a service in Grogan
and the fact by virtue of Article 49 TFEU freedom of establishment includes the right to take up and
192
T. Tridimas, The General Principles of EU Law, Oxford University Press 2006, p. 330.
193
Article 4(2) TFEU.
194
Tridimas 2006, op. cit., n. 191, p. 330.
195
Case 44/79 Hauer v. Land Rheinland-Pfalz [1979] ECR 3727.
196
Tridimas thinks that if the Court would have found a restriction it would have probably reasoned along the line of the
Advocate General. Tridimas 2006, op. cit., n. 191, p. 331.
197
There may be a possibility to claim the Irish Protocol to the Lisbon Treaty constitutes a violation of General Principles
of EU law. Although the general principles do not technically take priority over the Treaty – of which the Protocols form an
integral part (Article 51 TFEU) – , they may decisively influence its interpretation. In Chernobyl, for example, the ECJ in
effect adopted a contra legem interpretation of a Treaty provision. Case C-70/88 Parliament v Council (Chernobyl) [1990]
ECR I-2041. See also, Case C-229/05 P, PKK and KNK v Council of the European Union ECJ judgment of 18 January
2007 and Joined Cases C-402/05 P and C-415/05 P, Yassin Abdullah Kadi and Al Barakaat International Foundation v
Council and Commission, ECJ judgment of 3 September 2008.
35
pursue activities as self-employed persons and to set up and manage undertakings, ‘under the
conditions laid down for its own nationals by the law of the country where such establishment is
198
effected’.
Moreover – although superfluous given the above conclusions – even if a restriction
to the free movement rules could be found in the Irish abortion case, this restriction could most
probably be justified by an overriding public interest argument.199
IV –THE (IRISH) ABORTION CASE COMPARED TO OTHER ECJ FUNDAMENTAL RIGHTS
CASE-LAW
Thus far this paper has approached the Irish abortion case as a matter of EU citizens deliberately
making use of their free movement rights to enjoy a different (and in their opinion higher) level of
protection of fundamental rights as protected in another Member State. The matter may however
also be approached from a different angle. It is in principle possible that EU citizens or residents
claim before the ECJ that the Irish abortion ban restrains them from making use of their free
movement rights; that the Irish abortion laws deters them from moving (or even merely travelling)
to Ireland. Such a claim requires a line of argumentation as yet proposed by AG Jacobs in
Konstantinidis (1993)
200
to the extent that a Community (now Union) citizen who exercises his
freedom of movement is entitled to a certain standard of protection of his fundamental rights set
by Community (now Union) law, even if the host State does not guarantee that standard to its
own nationals.
201
This would mean that the violation of a fundamental right can by itself constitute
a restriction of free movement. For the abortion argument, a claim must then be made that Union
law guarantees a right to abortion. This does not necessarily have to be a broadly defined right.
One may for instance argue that the right to physical integrity encompasses a fundamental right
198
Article 49 TFEU. Hancher and Sauter furthermore observe that the Court has been ‘prepared to support patient
mobility and the right to freedom of choice in the health care sector, but has been reluctant to embrace the freedom of
healthcare providers to compete across borders to widen that choice’. Hancher and Sauter 2010, op. cit., n. 181, p. 120.
199
Restrictions to free movement can be justified if four criteria are fulfilled: (1) the measure applies to domestic and non-
domestic providers alike (i.e. it is non-discriminatory), (2) pursues a legitimate (overriding reason of) public interest, (3) is
suitable for ensuring the attainment of that public interest objective and, (4) the measure does not exceed what is
necessary to attain the objective. Inter alia Case C-55/94, Reinhard Gebhard v. Consiglio dell’Ordine degli Avvocati e
Procuratori di Milano (Gebhard), [1995] ECR I-4165, para 37, citing Case C-19/92, Kraus v. Land Baden-Wuerttemberg
(Kraus), [1993] ECR I-1663, para. 32. See also Hancher and Sauter 2010, op. cit., n. 181, p. 129.
200
Case C-168/91 Kostantinidis v. Stadt Altensteig - Standesamt and Landratsamt Calw – Ordnungsamt [1993] ECR I-
1191.
201
Tridmas contrasts this maximalist approach of AG Jacobs in Konstantinides with the minimialsit approach of AG Van
Gerven in Grogan. He notes however that the issues were entirely different and that Konstantinides did not involve a clash
of values such as that raised in Grogan. Tridimas 2006, op. cit., n. 191, p. 328.
36
to abortion if the health of the mother is in danger
202
, a right that is at present not recognised
under Irish law. In Konstantinidis a Greek national established in Germany held that the German
authorities had wrongly transliterated his Greek name into Latin characters. AG Jacobs argued
that there was a Community fundamental right to one’s name. The Court did not follow Jacobs’
suggestion and approached the case as one of economic rights only. It held that the matter did
not fall within the scope of Community law (art 43 EC, now 56 TFEU), as the German rules on the
transliteration of foreign names did not place the applicant in a disadvantageous position, as
compared to German nationals. Tridimas suggests that Konstantinides may now be decided
differently, as he thinks that the ECJ has been activist, ‘almost aggressive’, in deriving
enforceable rights from the concept of European citizenship and prepared to take fundamental
rights ‘much more seriously than before’.
203
As result of these developments in the ECJ’s case-
law, free movement may become an incorporation mechanism of fundamental rights and the free
movement provisions may become more and more detached from any economic activity
requirement. Such a development may be justified from the perspective that apart from working
conditions other things may count for the choice to move to another Member State. It can be
argued that the ECJ should also have eye for such considerations.
It must be admitted however, that claim to the effect as discussed above may not have great
chances of success in the abortion case, as the deterrent effect may be difficult to substantiate.
After all, not all women need abortion services and even if they do, only a few may make use of
this service more than once during their life. Therefore, in the abortion case there is no
continuous, recurring effect on the daily life of the women concerned. The question comes up
whether it is really disproportional to require from these women who voluntarily traveled to
Ireland, to travel to another Member State once for an abortion, if they ever need one. There are
however different and stronger examples conceivable, such as the situation where an EU citizen
or resident who wishes to move to another Member State for work purposes, but whose third
country national spouse is not able join him or her, as the country of destination does not
recognise their same sex marriage.
204
In that situation the effects for the individual concerned are
far more serious, as this affects essential choices in life. Still, it can be maintained that even that
scenario does not qualify as violation of the rules of free movement. AG Poiares Maduro has pled
for a refinement into the Konstantinides line of case-law for cases of serious and persistent
violations of fundamental rights. In his Opinion in the case of Centro Europa 7 Srl (2007), he held
that:
202
Some have yet concluded that from the ECtHR judgment in the case of Tysiąc v. Poland such a right can be derived.
Priaulx 2008, cit. op., n. 125.
203
Tridimas refers to Case C-148/02 Garcia Avello v. Etat Belge, judgment of 2 October 2003 and Case
C-184/99 Grzelcyk [2001] ECR I-6193. Tridimas 2006, op. cit., n. 191, p. 133 and 328.
204
See supra n. 3.
37
‘[…] not […] any violation of fundamental rights within the meaning of Article 6(2) EU
constitutes, of itself, an infringement of the rules on free movement. Only serious and
persistent violations which highlight a problem of systemic nature in the protection of
fundamental rights in the Member State at issue, would, in my view, qualify as violations
of the rules on free movement, by virtue of the direct threat they would pose to the
transnational dimension of European citizenship and to the integrity of the EU legal order.
However, so long as the protection of fundamental rights in a Member State is not gravely
inadequate in that sense, I believe the Court should review national measures for their
conformity with fundamental rights only when these measures come within the scope of
205
application of the Court’s jurisdiction as defined in its case-law to date.’
If the above approach as proposed by Poiares Maduro is applied to the here sketched abortion
and same sex marriage scenario’s, the relevant question will be whether the abortion ban in
Ireland, or the non-recognition by some Member States of same-sex marriages lawfully
concluded in other Member States, are ‘serious, persistent and systemic in nature’, or whether
they are ‘not gravely inadequate’. It may well be that the first category should be reserved for
more serious issues, and thus that the scenario’s here sketched best fit in the latter category.
206
This would mean that in this approach it would not be possible to regard the restrictive Irish
abortion law as a direct restriction of free movement.
As discussed above, there is a development towards stronger protection of individual rights in the
ECJ case-law noticeable. At the same time there is also case-law that shows that the Court may
leave considerable room for Member States to make their own choices as to the level of
protection of a specific right they wish to offer to their nationals. In Omega Spielhallen (2004)
207
the German authorities relied on the national level of protection of human dignity to justify a
prohibition on lasergames, which constituted a restriction on the freedom to provide services. The
ECJ held that it is not indispensable for the restrictive measure issued by the authorities of a
Member State to correspond to a conception shared by all Member States as regards the precise
way in which the fundamental right or legitimate interest in question is to be protected.
208
Hence,
the content of a right as recognised in the Community legal order may be different from its
205
Case C-380/05, Centro Europa 7 Sr, Ministero delle Comunicazioni e Autorità per le Garanzie nelle Comunicazioni and
Direzione Generale Autorizzazioni e Concessioni Ministero delle Comunicazioni, Opinion of Advocate General, Poiares
Maduro, delivered on 12 September 2007, para. 22.
206
This conclusion is confirmed by Maduro’s reference to Article 7 EU (now 7 TEU) in para. 18 of his Opinion.
207
Case C-36/02 Omega Spielhallen- und Automatenaufstellungs v. Oberbürgermeisterin der Bundesstadt Bonn,
judgment of 14 October 2004.
208
See also Tridimas 2006, op. cit., n. 191, p. 341.
38
content as recognised in the Constitutions of the Member States.
209
On the basis of the Omega
case it is to be expected that the Court will not have difficulties in accepting the right to life of the
unborn as a legitimate interest – the fact that all Member States put some limits to the stage of
pregnancy in which an abortion is legal supporting the Court in that judgment. On the other hand,
the distinguishing feature of the abortion question as compared with the Omega case, is that in
the abortion issue, the rights of another individual, the mother-to-be, are at stake as well.
Inevitably a balance must be struck in the abortion case, and the ECJ in principle has the
freedom to rule that under Union law in certain circumstances her rights must prevail over those
of the unborn child. This raises the question whether by adopting such respectful and reluctant
approach to the Member States’ choices in morally sensitive cases as it did in Omega, the ECJ
may overlook the rights of the individual concerned. From a Union’s perspective it seems that the
interests of the individual primarily coincide with free movement interests. The above-discussed
recent case-law shows on the other hand the ECJ’s tendency to approach individual’s rights more
independently from the economic activity that free movement was originally understood to serve.
A further and corresponding ‘strategy’ of the ECJ in these cases can be observed. As pointed out,
the Court leaves considerable room for states to decide themselves whether they wish to allow
for certain controversial moral issues. The Union principle of non-discrimination requires however
that once a State decriminalises certain acts, or foresees for certain possibilities under civil law,
such a measure may not be discriminatory. EU Member States are free to criminalise prostitution,
gambling or the sale of soft drugs. If however a State (partly) decriminalises the provision of these
services or goods, then these fall under the scope of Community (Union) law and consequently
any discriminatory treatment must be justified.
The ECtHR has adopted a similar approach in its case law. There is, for example, no obligation
under the ECHR to provide for IVF treatment, but once a State makes such a pro-creation
treatment legally available, Article 14 ECHR (prohibition of discrimination) requires that such is
done in an non-discriminatory manner.
210
On the basis of this reasoning the ECtHR in a recent
Austrian case concluded that the Austrian prohibition on IVF-treatment with the use of donor
gametes could not be justified.The ECtHR has even taken this ‘strategy’ one step further, by also
requiring other preconditions in order to ‘guarantee not rights that are theoretical or illusory but
209
Idem, p. 305 referring to Case 4/73 Nold v. Commission [1974] ECR 491 and Case 44/79 Hauer v. Land Rheinland-
Pfalz [1979] ECR 3727.
210
In ECtHR judgment of 1 April 2010, S.H. v. Austria, appl. no. 57813/00 the ECtHR held that once a Member State
allows for IVF-treatment in certain circumstances, it must do so indiscriminately. According to the ECtHR this entailed that
the Austrian prohibition on IVF-treatment with the use of donor gametes could not be justified.
39
rights that are practical and effective’.
211
For instance, in the abortion case of Tysiąc v Poland the
Court held that ‘once the legislature decides to allow abortion, it must not structure its legal
framework in a way which would limit real possibilities to obtain it.’
212
In a sense, this ‘strategy’ drives an even bigger wedge between the European States.
Intermediary and possibly partly discriminatory or partly ineffective approaches, cannot easily be
justified; states may either choose not to recognise a right at all – a principled approach to which
both European Courts leave room – or they recognise the existence of a right at national level,
but are also obliged to set up sufficient preconditions for the effective enjoyment of that right. In
that regard the currently pending reference for a preliminary ruling from a Dutch Court concerning
Dutch rules prohibiting the admission of non-residents to coffeeshops located in the boarder areas
to stop drug tourism
213
, is interesting to note. If the issue falls within the scope of the free movement
rules, the residence requirement undoubtedly forms a discriminatory restriction. The national court
essentially asks whether – in so far as the free movement rules are applicable – the resulting
indirect distinction between residents and non-residents is justified, and whether the prohibition of
the admission of non-residents to coffeeshops is a suitable and proportionate means of reducing
drug tourism and the public nuisance which accompanies it. What should the ECJ rule in situations
were a specific Member State is clearly overburdened or suffers from considerable public nuisance
as a result of its more liberal laws? Is it legitimate for such a destination country to set
(discriminatory) restrictions to the free movement? What if the UK decides to no longer offer
abortion services to non-residents? Would there be any ground for the EC to interfere or for the ECJ
to hold that such a restriction is (un)justified once a case on this ground has been brought before it?
V – CONCLUSIONS AND QUESTIONS FOR FURTHER RESEARCH
If the abortion tourism case study shows one thing, it is that the co-existence of different standard
setting in the European Union results in tensions for which thus far only ad hoc solutions have
been sought by all actors involved. Individuals have sought alternatives and travelled to other
Member States to profit from a different – and in their eyes more profitable – fundamental rights
regime. In some occasions these other regimes literally came to them, by means of the abortion
boat of Women on Waves. The Irish state at all possible occasions sought to exclude substantive
211
See, inter alia, ECtHR judgment of 9 October 1979, Airey v. Ireland, appl. no. 6289/73, para. 24; ECtHR [GC] judgment
of 29 June 2007, Folgerø and Others v. Norway, appl. no. 15472/02, para. 100 and ECtHR [GC] judgment of 27
November 2008, Salduz v. Turkey no. 36391/02, para. 51.
212
ECtHR judgment of 20 March 2007, Tysiąc v. Poland, appl. no. 5410/03, para. 116.
213
Case C-137/09, Josemans en Burgemeester van Maastricht, reference for a preliminary ruling from the Raad van State
(Netherlands) lodged on 15 April 2009, OJ (20.6.2009) C-141/32.
40
European influence as much as possible, the Protocols to the various EU Treaties being the
clearest example thereof. The various sections have furthermore painted a picture of reluctance
on the side of both the European Court of Justice and the European Court of Human Rights to
give substantive rulings in these sensitive issues. This can be explained from the perspective of
their legitimisation, which is after all based on a transfer of jurisdiction by the Member States (or
Contracting Parties) to these Courts. Particularly the ECJ’s judgment in Grogan can be critisised
for the very casuistic and non-principled approach taken by the ECJ. One could almost get the
impression that the Court by all means sought for all possible grounds to escape any substantive
ruling in this sensitive matter. At the same time it may be argued that the Court had legitimate
reasons to do so.
The present reality for Ireland is that the occurring problems were partly solved: the de facto
effect of Grogan has been that the freedom to travel to another Member State for an abortion and
the freedom to receive information about foreign abortion services, have been incorporated in the
Irish Constitution. Without the judgments of the ECJ and the ECtHR in Grogan respectively Open
Door, such liberalisation of the Irish laws might not have taken place. Without the free movement
rules, Irish women would not have had a choice at all, or would have been at risk of prosecution
in their home country for having obtained an abortion abroad. Thus, what the abortion tourism
case study also shows is that the internal market may create problems, but at the same time also
partly solves them. The internal market can thus be said to have a corrective or even harmonizing
effect resulting (partly) in negative integration. However as has also been shown, there are limits
to this corrective effect. Some discrepancies, whether judged positively or negatively – still exist.
Possibly a claim can be made that the interests of one of the actors is at present
underrepresented. Are, for instance, the interests of the individual sufficiently taken into account
at European level? Is there a need for the Member States or for the Union (the EC or the ECJ) to
step in?
The above leads to the formulation of a broader question for further research to the effect at what
level abortion tourism and other comparable situations in which diverging human rights standards
and fundamental freedoms interact, should be regulated. Are these matters that ask for European
regulation? Two further questions are closely connected therewith: the first being what regulation
at European level could at all entail, and the second on the basis of which standard this research
question should be decided.
The question what regulation at European level could at all entail cannot be exhaustively
answered yet. It is often held that substantive harmonisation of abortion laws in the European
Union is not feasible, as this area explicitly belongs to the competences of the Member States.
41
On the other hand, what this paper has tried to demonstrate, is that in the current situation certain
interests of certain actors may be overlooked, for instance the financial interests of the Irish
women who wish to have an abortion. It is therefore conceivable that regulation of the financial
aspects of abortion tourism at European level may serve their interests, while maintaining the
interests of the States and the Union. In the same sex marriage case-study – that came up in this
paper several times but requires further research before any well-founded conclusions can be
drawn from it – the setting up of European conflict law for this purpose is suggested as a
possible option.
At what level should morally sensitive fundamental rights issues with a clear free movement
component, be regulated? To answer that question it may be helpful to set up some parameters.
The here suggested parameters are drawn from the abortion tourism case study. The list by no
means claims to be exhaustive nor perfect, but aims to give an initial impetus for this exercise.
Parameter 1: The (relative) seriousness of the interests of the individual
A first parameter could be the seriousness of the interests of the individual concerned. How
fundamental is the fundamental right that is at stake? Inherently, this requires a sort of hierarchy
within the fundamental rights. Such a hierarchy could be made in line with AG Poiares Maduro’s
suggestion in his Opinion in Centro Europeo (see Part IV above). Imaginable – but at the same
time contestable – would for example be that the right to bodily integrity would weigh heavier than
the right to receive information.
Parameter 2: The relative burden for individuals
The second proposed parameter is closely connected with the first, but nevertheless distinct from
it. It concerns the relative burden for individuals to either be ‘forced’ to make use of their free
movement rights (like for example the Irish abortion women), or to be restrained from it (like the
same-sex couple as discussed above). In that regard it may be relevant whether a one time only
movement is concerned, or whether life decisions may be impaired. Does the divergence
between different fundamental rights regimes, have a continuous deterrent effect on individuals
concerned, or is first of all a matter of a non-recurrent financial burden? Inevitably such a burden
must be (partly) expressed in financial and/or practical terms. Highly practical things such as the
costs of travelling play a role when applying this parameter. Consequently, the proximity of
Member States with more liberal regime may be relevant as well.
214
214
In this regard the EctHR judgment of 27 June 2000 in the case of Cha’are Shalom ve Tsedek (appl. no. 27417/95) is
interesting. In this case the Court (in para. 81-82) held that the availability of glatt meat in Belgium was a relevant factor in
justifying a refusal to a religious association registered under French law and operating in France to authorise its own
ritual slaughterers to perform ritual slaughter.
42
Parameter 3: The alternatives available
Again closely connected with the preceding parameter is the question to the alternatives for
individuals. Here the often heard argument in the abortion context that illegal abortions entail
much higher risks to the health of the woman concerned, may possibly play a role. The question
as to whether alternatives in other Member States are available, is also covered by the previous
parameter.
Parameter 4: The overburdening of certain Member States
If certain Member States as a result of their deviating (and most probably more liberalised)
regime experience a clear overburdening or public nuisance as a result of the here discussed
specific type of ‘tourists’ (drugs tourists, abortion tourists etc.), there may be a reason for the
Union to step in or at least to leave room to the respective Member States to put a halt to this
overburdening. As goes for the previous parameters, the seriousness of the burden will be a
relevant factor.
The answers to the here formulated research questions and the here proposed parametes may
prove not only relevant for the abortion tourism case study. Various other controversial issues
exist where some form of interaction between different fundamental rights standards and
fundamental freedoms takes place. Apart from abortion tourism, there are other new types of
‘tourism’ discernible, such as IVF treatment tourism
215
216
and euthanasia tourism.
The examples
of different regimes concerning the sale of controversial books like Hitler’s Mein Kampf, or
concerning the (de)criminalisation of soft drugs have yet been mentioned in this paper. The same
goes for the same-sex marriage case study. Furthermore, also in immigration issues, people ‘take
advantage of’ the most profitable regime available in the Union and often deliberately make use
of their free movement rights for that purpose. Other possible challenges in this field may be yet
unknown. The Polish Declaration to the Lisbon Treaty may be a source for new challenges in this
field. It explicitly states that the Charter
215
For instance, it emerges from (para. 98 of) the ECtHR judgment of 1 April 2010 in the case of S.H. v. Austria (appl. no.
57813/00) that the applicants obtained their IVF-treatment with the use of donor gametes in other countries where it was
readily available.
216
In particular the Swiss charity organisation Dignitas attracts many foreigners including many EU citizens. Illustrative is
a commentary on the Interim Policy for Prosecutors by the UK Director of Public Prosecution in respect of cases of
assisted suicide, that the organisation recently posted on its website. Commentary submitted to the Crown Prosecution by
Dignitas, Interim Policy for Prosecutors in respect of Cases of Assisted Suicide Issued by The Director of Public
Prosecution, December 2009, online available at http://www.dignitas.ch/WeitereTexte/Kommentar_CPS-Richtlinien.pdf
(last accessed 09.04.2010). See also various media reports such as ‘Brit krijgt euthanasie in Zurich’, Trouw 21 January
2003, p. 6; ‘Plan to evict suicide charity’, The Sunday Independent 4 June 2006; ‘Case tests law on assisted suicides’,
Irish Independent 21 September 2006.
43
‘does not affect in any way the right of Member States to legislate in the sphere of public
morality, family law, as well as the protection of human dignity and respect for human
physical and moral integrity’.
217
What possible future fundamental rights/fundamental freedoms ‘conflicts’ may result from this
Declaration, remains yet to be seen. If for example, the Polish Prosecutor will indeed – as
reported in the newspaper article with which this paper started
218
– prosecute Polish women who
had an abortion abroad, the abortion tourism case would be lifted to a different level, making the
here sketched difficulties and the here posed questions even more relevant.
217
Declaration by the Republic of Poland on the Charter of Fundamental Rights of the European Union, Annexed to the
final act of the Intergovernmental Conference which adopted the Treaty of Lisbon, signed on 13 December 2007,
OJ (9.5.2008) C 115/358.
218
See op. cit., n. 1.
44